EXECUTION VERSION
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor
and
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.
Master Servicer
and
CLARION PARTNERS, LLC
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION
Trustee
and
ABN AMRO BANK N.V.
Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2005
-------------------------
$1,137,261,494 (approximate)
Commercial Mortgage Pass-Through Certificates
Series 2005-MKB2
TABLE OF CONTENTS
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Page ---- ARTICLE I DEFINITIONS SECTION 1.01. Defined
Terms..................................................................................6
SECTION 1.02. Certain Adjustments to the Principal Distributions on
the Certificates........................67 ARTICLE II CONVEYANCE OF
MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE
OF CERTIFICATES SECTION 2.01. Conveyance of Mortgage
Loans..................................................................70
SECTION 2.02. Acceptance of the Trust Fund by
Trustee.......................................................73
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of Representations
and Warranties.............................74 SECTION 2.04.
Representations and Warranties of
Depositor...................................................78
SECTION 2.05. Conveyance of Mortgage Loans; Acceptance of REMIC I
by Trustee................................79 SECTION 2.06.
Execution, Authentication and Delivery of Class R-I
Certificates..............................79 SECTION 2.07.
Execution, Authentication and Delivery of REMIC II
Certificates...............................80 SECTION 2.08.
Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by
Trustee....................80 SECTION 2.09. Execution,
Authentication and Delivery of Class Z
Certificates................................80 ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND SECTION 3.01.
Administration of the Mortgage
Loans..........................................................81
SECTION 3.02. Collection of Mortgage Loan
Payments..........................................................82
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve
Accounts............................................................................84
SECTION 3.04. Collection Account, Interest Reserve Account,
Additional Interest Account, Distribution Account and Gain-on-Sale
Reserve Account ......................................89 SECTION
3.05. Permitted Withdrawals From the Collection Account, the
Interest Reserve Account, the Additional Interest Account and the
Distribution Account .....................92 SECTION 3.06.
Investment of Funds in the Servicing Accounts, the Reserve
Accounts, the Collection Account, the Distribution Account, the
Additional Interest Account, the Gain-on-Sale Reserve Account and
the REO Accounts..............................97 SECTION 3.07.
Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.................99 SECTION 3.08. Enforcement of
Alienation
Clauses............................................................102
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals...............................105 SECTION 3.10. Trustee
and Custodian to Cooperate; Release of Mortgage
Files................................108 SECTION 3.11. Servicing
Compensation.......................................................................109
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Page ---- SECTION 3.12. Property Inspections; Collection of
Financial Statements; Delivery of Certain
Reports....................................................................................115
SECTION 3.13. Annual Statement as to
Compliance............................................................118
SECTION 3.14. Reports by Independent Public
Accountants....................................................119
SECTION 3.15. Access to Certain
Information................................................................119
SECTION 3.16. Title to REO Property; REO
Accounts..........................................................123
SECTION 3.17. Management of REO
Property...................................................................124
SECTION 3.18. Resolution of Defaulted Mortgage Loans and REO
Properties....................................127 SECTION 3.19.
Additional Obligations of Master
Servicer....................................................132
SECTION 3.20. Modifications, Waivers, Amendments and
Consents..............................................133 SECTION
3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record
Keeping....................................................................................139
SECTION 3.22. Sub-Servicing
Agreements.....................................................................142
SECTION 3.23. Representations and Warranties of Master Servicer and
Special Servicer.......................144 SECTION 3.24.
Sub-Servicing Agreement Representation and
Warranty..........................................146 SECTION 3.25.
Designation of Controlling Class
Representative..............................................147
SECTION 3.26. Application of Default
Charges...............................................................148
SECTION 3.27. Controlling Class Representative Contact with
Servicer.......................................149 ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS SECTION 4.01.
Distributions................................................................................150
SECTION 4.02. Statements to
Certificateholders.............................................................161
SECTION 4.03. P&I Advances; Reimbursement of P&I Advances
and Servicing Advances...........................165 SECTION 4.04.
Allocation of Realized Losses and Additional Trust Fund
Expenses.............................169 SECTION 4.05.
Calculations.................................................................................171
SECTION 4.06. Use of
Agents................................................................................171
ARTICLE V THE CERTIFICATES SECTION 5.01. The
Certificates.............................................................................172
SECTION 5.02. Registration of Transfer and Exchange of
Certificates........................................172 SECTION
5.03. Book-Entry
Certificates......................................................................178
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen
Certificates............................................180 SECTION
5.05. Persons Deemed
Owners........................................................................180
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE SECTION 6.01. Liability of
Depositor, Master Servicer and Special
Servicer.................................181
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Page ---- SECTION 6.02. Merger, Consolidation or Conversion of
Depositor or Master Servicer or Special
Servicer...................................................................................181
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and
Others........................................................................181
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer......................................184 SECTION 6.05.
Rights of Depositor and Trustee in Respect of Master Servicer and
the Special
Servicer...................................................................................185
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee....................185 SECTION 6.07.
Depositor, Special Servicer and Trustee to Cooperate with Master
Servicer....................185 SECTION 6.08. Depositor, Master
Servicer and Trustee to Cooperate with Special
Servicer....................185 SECTION 6.09. Designation of
Special Servicer by the Controlling
Class.....................................185 SECTION 6.10. Master
Servicer or Special Servicer as Owner of a
Certificate................................186 SECTION 6.11. The
Controlling Class
Representative.........................................................187
ARTICLE VII DEFAULT SECTION 7.01. Events of
Default............................................................................190
SECTION 7.02. Trustee to Act; Appointment of
Successor.....................................................193
SECTION 7.03. Notification to
Certificateholders...........................................................194
SECTION 7.04. Waiver of Events of
Default..................................................................194
SECTION 7.05. Additional Remedies of Trustee Upon Event of
Default.........................................194 ARTICLE VIII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT SECTION 8.01. Duties of
Trustee............................................................................196
SECTION 8.02. Certain Matters Affecting
Trustee............................................................197
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage
Loans.............................................................198
SECTION 8.04. Trustee and Fiscal Agent May Own
Certificates................................................199
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee.....................................199 SECTION 8.06.
Eligibility Requirements for
Trustee.........................................................199
SECTION 8.07. Resignation and Removal of
Trustee...........................................................200
SECTION 8.08. Successor
Trustee............................................................................201
SECTION 8.09. Merger or Consolidation of
Trustee...........................................................202
SECTION 8.10. Appointment of Co-Trustee or Separate
Trustee................................................202 SECTION
8.11. Appointment of
Custodians....................................................................203
SECTION 8.12. Appointment of Authenticating
Agents.........................................................203
SECTION 8.13. Access to Certain
Information................................................................204
SECTION 8.14. Appointment of REMIC
Administrators..........................................................205
SECTION 8.15. Representations, Warranties and Covenants of
Trustee.........................................205
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Page ---- SECTION 8.16. Reports to the Securities and Exchange
Commission............................................206 SECTION
8.17. Maintenance of Mortgage
File.................................................................211
SECTION 8.18. The Fiscal
Agent.............................................................................211
SECTION 8.19. Representations and Warranties of Fiscal
Agent...............................................212 ARTICLE IX
TERMINATION SECTION 9.01. Termination Upon Repurchase or
Liquidation of All Mortgage Loans.............................214
SECTION 9.02. Additional Termination
Requirements..........................................................216
ARTICLE X ADDITIONAL TAX PROVISIONS SECTION 10.01. REMIC
Administration.........................................................................218
SECTION 10.02. Grantor Trust
Administration.................................................................221
ARTICLE XI MISCELLANEOUS PROVISIONS SECTION 11.01.
Amendment....................................................................................224
SECTION 11.02. Recordation of Agreement;
Counterparts.......................................................226
SECTION 11.03. Limitation on Rights of
Certificateholders...................................................226
SECTION 11.04. Governing
Law................................................................................227
SECTION 11.05.
Notices......................................................................................227
SECTION 11.06. Severability of
Provisions...................................................................229
SECTION 11.07. Grant of a Security
Interest.................................................................229
SECTION 11.08. Streit
Act...................................................................................229
SECTION 11.09. Successors and Assigns;
Beneficiaries........................................................229
SECTION 11.10. Article and Section
Headings.................................................................230
SECTION 11.11. Notices to Rating
Agencies...................................................................230
SECTION 11.12. Complete
Agreement...........................................................................231
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EXHIBITS
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Exhibit No. Exhibit Description ----------- ------------------- A-1
Form of Class A-1, A-2, A-3, A-SB, A-4 and A-1A Certificates A-2
Form of Class XP Certificate A-3 Form of Class XC Certificate A-4
Form of Class AJ, B, C and D Certificates A-5 Form of Class E, F, G
and H Certificates A-6 Form of Class J, K, L, M, N, P and Q
Certificates A-7 Form of Class R-I and R-II Certificates A-8 Form
of Class Z Certificate B Mortgage Loan Schedule C Form of Custodial
Certification D-1 Form of Master Servicer Request for Release D-2
Form of Special Servicer Request for Release E-1 Form of Transferor
Certificate for Transfers of Definitive Non-Registered Certificates
(Pursuant to Section 5.02(c)) E-2A Form I of Transferee Certificate
for Transfers of Definitive Non-Registered Certificates (Pursuant
to Section 5.02(c)) E-2B Form II of Transferee Certificate for
Transfers of Definitive Non-Registered Certificates (Pursuant to
Section 5.02(c)) E-2C Form of Transferee Certificate for Transfers
of Interests in Rule 144A Global Certificates (Pursuant to Section
5.02(c)) F-1 Form I of Transferee Certificate Regarding ERISA
Matters (Definitive Non-Registered Certificates) (Pursuant to
Section 5.02(c)) F-2 Form II of Transferee Certificate Regarding
ERISA Matters (Book-Entry Non-Registered Certificates) (Pursuant to
Section 5.02(c)) G-1 Form of Transfer Affidavit and Agreement
Regarding Residual Certificates (Pursuant to Section 5.02(d)(i)(4))
G-2 Form of Transferor Certificate for Transfers of Residual
Certificates (Pursuant to Section 5.02(d)(i)(4)) H-1 Form of Notice
and Acknowledgment (Regarding Proposed Special Servicer) H-2 Form
of Acknowledgment of Proposed Special Servicer I-1 Form of
Information Request from Certificateholder or Certificate Owner I-2
Form of Information Request from Prospective Investor J List of
Mortgage Loans with Secured Creditor Impaired Property
Environmental Insurance Policies K Form of S&P Defeasance
Certification L Class XP Reference Rate Schedule M-1 Form of
Purchase Option Notice M-2 Form of Purchase Option Assignment by
the Special Servicer M-3 Form of Purchase Option Assignment by
Plurality Subordinate Certificateholder N Form of Distribution Date
Statement O Form of Sarbanes-Oxley Certification by the Depositor
P-1 Form of Certification to be Provided by the Master Servicer to
the Depositor P-2 Form of Certification to be Provided by the
Trustee to the Depositor P-3 Form of Certification to be Provided
by the Special Servicer to the Depositor Q List of Broker Strip
Loans R List of Sub-Servicing Agreements in Effect on the Closing
Date S Class A-SB Planned Principal Balance
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vi
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement is dated and effective as of
March 1,
2005, among MERRILL LYNCH MORTGAGE INVESTORS, INC., as Depositor,
KEYCORP REAL
ESTATE CAPITAL MARKETS, INC., as Master Servicer, CLARION PARTNERS,
LLC, as
Special Servicer, LASALLE BANK NATIONAL ASSOCIATION, as Trustee,
and ABN AMRO
BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates,
to be
issued hereunder in multiple classes, which in the aggregate will
evidence the
entire beneficial ownership interest in a trust fund to be created
hereunder,
the primary assets of which will be the Mortgage Loans.
As provided herein, the Trustee will elect to treat the segregated
pool of
assets consisting of all of the Mortgage Loans (exclusive of the
Broker Strip,
the Excess Servicing Strip and that portion of the interest
payments on the
Mortgage Loans that constitutes Additional Interest) and certain
other related
assets subject to this Agreement as a REMIC for federal income tax
purposes, and
such segregated pool of assets will be designated as "REMIC I." The
Class R-I
Certificates will evidence the sole class of "residual interests"
in REMIC I for
purposes of the REMIC Provisions under federal income tax law. For
federal
income tax purposes, each REMIC I Regular Interest will be
designated as a
separate "regular interest" in REMIC I for purposes of the REMIC
Provisions
under federal income tax law. None of the REMIC I Regular Interests
will be
certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of
assets consisting of all of the REMIC I Regular Interests as a
REMIC for federal
income tax purposes, and such segregated pool of assets will be
designated as
"REMIC II". The Class R-II Certificates will evidence the sole
class of
"residual interests" in REMIC II for purposes of the REMIC
Provisions under
federal income tax law. For federal income tax purposes, each Class
of the
Regular Certificates (or, in the case of a Class of Class X
Certificates, each
Component thereof) will be designated as a separate "regular
interest" in REMIC
II for purposes of the REMIC Provisions under federal income tax
law.
The following table sets forth: (i) the class designation of each
Class of
Sequential Pay Certificates; (ii) the Original Class Principal
Balance for each
Class of Sequential Pay Certificates; (iii) the corresponding REMIC
I Regular
Interest or REMIC I Regular Interests (each, a "Corresponding REMIC
I Regular
Interest") for each Class of Sequential Pay Certificates; and (iv)
the initial
REMIC I Principal Balance of each Corresponding REMIC I Regular
Interest.
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------------------------- ------------------------
------------------------ ------------------------ Class of
Corresponding Sequential Pay Original Class REMIC I Initial REMIC I
Certificates Principal Balance Regular Interest(s) Principal
Balance ------------------------- ------------------------
------------------------ ------------------------ Class A-1 $
50,000,000 LA-1-1 $ 2,778,000 -------------------------
------------------------ ------------------------
------------------------ LA-1-2 $ 3,495,000
------------------------- ------------------------
------------------------ ------------------------ LA-1-3 $
19,143,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1-4 $
21,335,000 ------------------------- ------------------------
------------------------ ------------------------
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-------------------------
------------------------ ------------------------
------------------------ Class of Corresponding Sequential Pay
Original Class REMIC I Initial REMIC I Certificates Principal
Balance Regular Interest(s) Principal Balance
------------------------- ------------------------
------------------------ ------------------------ LA-1-5 $
3,249,000 ------------------------- ------------------------
------------------------ ------------------------ Class A-2 $
228,186,000 LA-2-1 $ 17,856,000 -------------------------
------------------------ ------------------------
------------------------ LA-2-2 $ 20,365,000
------------------------- ------------------------
------------------------ ------------------------ LA-2-3 $
20,567,000 ------------------------- ------------------------
------------------------ ------------------------ LA-2-4 $
19,803,000 ------------------------- ------------------------
------------------------ ------------------------ LA-2-5 $
70,322,000 ------------------------- ------------------------
------------------------ ------------------------ LA-2-6 $
79,273,000 ------------------------- ------------------------
------------------------ ------------------------ Class A-3 $
40,623,000 LA-3 $ 40,623,000 -------------------------
------------------------ ------------------------
------------------------ Class A-SB $ 42,997,000 LA-SB-1 $
29,642,000 ------------------------- ------------------------
------------------------ ------------------------ LA-SB-2 $
13,355,000 ------------------------- ------------------------
------------------------ ------------------------ Class A-4 $
332,815,000 LA-4-1 $ 937,000 -------------------------
------------------------ ------------------------
------------------------ LA-4-2 $ 20,974,000
------------------------- ------------------------
------------------------ ------------------------ LA-4-3 $
13,255,000 ------------------------- ------------------------
------------------------ ------------------------ LA-4-4 $
28,734,000 ------------------------- ------------------------
------------------------ ------------------------ LA-4-5 $
11,996,000 ------------------------- ------------------------
------------------------ ------------------------ LA-4-6 $
18,639,000 ------------------------- ------------------------
------------------------ ------------------------ LA-4-7 $
238,280,000 ------------------------- ------------------------
------------------------ ------------------------ Class A-1A $
215,188,000 LA-1A-1 $ 210,000 -------------------------
------------------------ ------------------------
------------------------ LA-1A-2 $ 256,000
------------------------- ------------------------
------------------------ ------------------------ LA-1A-3 $
3,877,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1A-4 $
4,775,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1A-5 $
4,979,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1A-6 $
4,778,000 ------------------------- ------------------------
------------------------ ------------------------
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------------------------- ------------------------
------------------------ ------------------------ Class of
Corresponding Sequential Pay Original Class REMIC I Initial REMIC I
Certificates Principal Balance Regular Interest(s) Principal
Balance ------------------------- ------------------------
------------------------ ------------------------ LA-1A-7 $
4,677,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1A-8 $
4,502,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1A-9 $
13,079,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1A-10 $
11,458,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1A-11 $
4,210,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1A-12 $
4,003,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1A-13 $
5,480,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1A-14 $
28,732,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1A-15 $
2,930,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1A-16 $
2,737,000 ------------------------- ------------------------
------------------------ ------------------------ LA-1A-17 $
114,505,000 ------------------------- ------------------------
------------------------ ------------------------ Class AJ $
61,128,000 LAJ $ 61,128,000 -------------------------
------------------------ ------------------------
------------------------ Class B $ 32,696,000 LB $ 32,696,000
------------------------- ------------------------
------------------------ ------------------------ Class C $
9,951,000 LC $ 9,951,000 -------------------------
------------------------ ------------------------
------------------------ Class D $ 21,323,000 LD-1 $ 1,453,000
------------------------- ------------------------
------------------------ ------------------------ LD-2 $ 6,156,000
------------------------- ------------------------
------------------------ ------------------------ LD-3 $ 5,526,000
------------------------- ------------------------
------------------------ ------------------------ LD-4 $ 5,264,000
------------------------- ------------------------
------------------------ ------------------------ LD-5 $ 2,924,000
------------------------- ------------------------
------------------------ ------------------------ Class E $
12,795,000 LE-1 $ 973,000 -------------------------
------------------------ ------------------------
------------------------ LE-2 $ 6,840,000 -------------------------
------------------------ ------------------------
------------------------ LE-3 $ 4,982,000 -------------------------
------------------------ ------------------------
------------------------ Class F $ 18,480,000 LF-1 $ 3,743,000
------------------------- ------------------------
------------------------ ------------------------
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-3-
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------------------------- ------------------------
------------------------ ------------------------ Class of
Corresponding Sequential Pay Original Class REMIC I Initial REMIC I
Certificates Principal Balance Regular Interest(s) Principal
Balance ------------------------- ------------------------
------------------------ ------------------------ LF-2 $ 8,564,000
------------------------- ------------------------
------------------------ ------------------------ LF-3 $ 6,173,000
------------------------- ------------------------
------------------------ ------------------------ Class G $
11,373,000 LG-1 $ 5,353,000 -------------------------
------------------------ ------------------------
------------------------ LG-2 $ 6,020,000 -------------------------
------------------------ ------------------------
------------------------ Class H $ 14,216,000 LH-1 $ 9,347,000
------------------------- ------------------------
------------------------ ------------------------ LH-2 $ 4,869,000
------------------------- ------------------------
------------------------ ------------------------ Class J $
7,107,000 LJ-1 $ 5,858,000 -------------------------
------------------------ ------------------------
------------------------ LJ-2 $ 1,249,000 -------------------------
------------------------ ------------------------
------------------------ Class K $ 5,687,000 LK-1 $ 565,000
------------------------- ------------------------
------------------------ ------------------------ LK-2 $ 5,122,000
------------------------- ------------------------
------------------------ ------------------------ Class L $
4,264,000 LL $ 4,264,000 -------------------------
------------------------ ------------------------
------------------------ Class M $ 4,265,000 LM $ 4,265,000
------------------------- ------------------------
------------------------ ------------------------ Class N $
2,843,000 LN $ 2,843,000 -------------------------
------------------------ ------------------------
------------------------ Class P $ 5,687,000 LP $ 5,687,000
------------------------- ------------------------
------------------------ ------------------------ Class Q $
15,637,494 LQ $ 15,637,494 -------------------------
------------------------ ------------------------
------------------------
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The portion of the Trust Fund consisting of (i) the Additional
Interest and
the Additional Interest Account and (ii) amounts held from time to
time in the
Collection Account and/or the Additional Interest Account that
represent
Additional Interest shall be treated as a grantor trust for federal
income tax
purposes, and such grantor trust will be designated as "Grantor
Trust Z". In
addition, the portions of the Trust Fund consisting of (i) the
Excess Servicing
Strip and (ii) amounts held from time to time in the Collection
Account that
represent the Excess Servicing Strip shall be treated as a grantor
trust for
federal income tax purposes, and such grantor trust will be
designated as
"Grantor Trust E". In addition, the portions of the Trust Fund
consisting of (i)
the Broker Strip and (ii) amounts held from time to time in the
Collection
Account that represent the Broker Strip, shall be treated as a
grantor trust for
federal income tax purposes, and such grantor trust will be
designated as
"Grantor Trust B". As provided herein, the Trustee shall take all
actions
reasonably necessary to ensure that each of the respective portions
of the Trust
Fund consisting of Grantor Trust Z, Grantor Trust E and Grantor
Trust B,
respectively, maintains its status as a "grantor trust" under
federal income tax
law and is not treated as part of REMIC I or REMIC II.
-4-
In consideration of the mutual agreements herein contained, the
Depositor,
the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent
agree as follows:
-5-
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement,
the following words and phrases, unless the context otherwise
requires, shall
have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of
a
360-day year consisting of twelve 30-day months.
"Acceptable Insurance Default": With respect to any Mortgage Loan,
any
default under the related Mortgage Loan documents resulting from:
(i) the
exclusion of acts of terrorism from coverage under the related "all
risk"
casualty insurance policy maintained on the related Mortgaged
Property and (ii)
the related Mortgagor's failure to obtain insurance that
specifically covers
acts of terrorism, but, in each case, only if the Special Servicer
has
determined, in its reasonable judgment (exercised in accordance
with the
Servicing Standard), that (a) such insurance is not available at
commercially
reasonable rates and the subject hazards are not commonly insured
against by
prudent owners of similar real properties in similar locales (but
only by
reference to such insurance that has been obtained by such owners
at current
market rates) or (b) such insurance is not available at any rate.
Subject to the
Servicing Standard, in making any of the determinations required in
subclause
(a) or (b) of this definition, the Special Servicer shall be
entitled to rely on
the opinion of an insurance consultant.
"Accrued Certificate Interest": With respect to any Class of
Sequential Pay
Certificates for any Distribution Date, one month's interest at the
Pass-Through
Rate applicable to such Class of Certificates for such Distribution
Date,
accrued on the related Class Principal Balance outstanding
immediately prior to
such Distribution Date; with respect to the Class XC Certificates
for any
Distribution Date, the aggregate of all Accrued Component Interest
with respect
to the Class XC Components for such Distribution Date; and, with
respect to the
Class XP Certificates for any Distribution Date, the aggregate of
all Accrued
Component Interest with respect to the Class XP Components for such
Distribution
Date. Accrued Certificate Interest shall be calculated on a 30/360
Basis and,
with respect to any Class of Regular Certificates for any
Distribution Date,
shall be deemed to accrue during the calendar month preceding the
month in which
such Distribution Date occurs.
"Accrued Component Interest": With respect to each Class XC
Component and
Class XP Component for any Distribution Date, one month's interest
at the Class
XC Strip Rate (in the case of a Class XC Component) or Class XP
Strip Rate (in
the case of a Class XP Component), as applicable, with respect to
such Component
for such Distribution Date, accrued on the Component Notional
Amount of such
Component outstanding immediately prior to such Distribution Date.
Accrued
Component Interest shall be calculated on a 30/360 Basis and, with
respect to
any Class XC Component or Class XP Component for any Distribution
Date, shall be
deemed to accrue during the calendar month preceding the month in
which such
Distribution Date occurs.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the
actual number of days elapsed during any calendar month (or other
applicable
accrual period) in a year assumed to consist of 360 days.
-6-
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues
interest on an
Actual/360 Basis.
"Additional Exclusions": Exclusions in addition to those in the
insurance
policies for the Mortgaged Properties on September 11, 2001.
"Additional Interest": With respect to any ARD Loan after its
Anticipated
Repayment Date, all interest accrued on the principal balance of
such ARD Loan
at the Additional Interest Rate (the payment of which interest
shall, under the
terms of such Mortgage Loan, be deferred until the entire
outstanding principal
balance of such ARD Loan has been paid), together with all
interest, if any,
accrued at the related Mortgage Rate plus the related Additional
Interest Rate
on such deferred interest. For purposes of this Agreement,
Additional Interest
on an ARD Loan or any successor REO Loan with respect thereto shall
be deemed
not to constitute principal or any portion thereof and shall not be
added to the
unpaid principal balance or Stated Principal Balance of such ARD
Loan or
successor REO Loan, notwithstanding that the terms of the related
Mortgage Loan
documents so permit. To the extent that any Additional Interest is
not paid on a
current basis, it shall be deemed to be deferred interest.
"Additional Interest Account": The segregated account or accounts
(which
may be a sub-account of the Distribution Account) created and
maintained by the
Trustee pursuant to Section 3.04(d) which shall be entitled
"LaSalle Bank
National Association as Trustee, in trust for the registered
holders of Merrill
Lynch Mortgage Trust 2005-MKB2, Commercial Mortgage Pass-Through
Certificates,
Series 2005-MKB2, Additional Interest Account." The Additional
Interest Account
shall not be an asset of either REMIC I or REMIC II.
"Additional Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the per
annum rate at
which such Mortgage Loan accrues interest after the Anticipated
Repayment Date
(in the absence of defaults) as calculated and as set forth in the
related
Mortgage Loan documents.
"Additional Trust Fund Expense": Any Special Servicing Fees,
Workout Fees,
Principal Recovery Fees and, in accordance with Sections 3.03(d)
and 4.03(d),
interest payable to the Master Servicer, the Special Servicer, the
Trustee and
the Fiscal Agent on Advances (to the extent not offset by Default
Charges) and
amounts payable to the Special Servicer in connection with
inspections of
Mortgaged Properties required pursuant to the first sentence of
Section 3.12(a)
(and not otherwise paid from Default Charges), as well as (without
duplication)
any of the expenses of the Trust Fund that may be withdrawn (a)
pursuant to any
of clauses (vii)(B), (ix), (xi), (xii), (xiii) and (xvi) of Section
3.05(a) out
of collections on the related Mortgage Loans or REO Properties or
out of general
collections on the Mortgage Loans and any REO Properties on deposit
in the
Collection Account as indicated in such clauses of Section 3.05(a),
or (b)
pursuant to clause (ii) or any of clauses (iv) through (vi) of
Section 3.05(b)
out of general collections on the Mortgage Loans and any REO
Properties on
deposit in the Distribution Account; provided that for purposes of
the
allocations contemplated by Section 4.04 no such expense shall be
deemed to have
been incurred by the Trust Fund until such time as the payment
thereof is
actually made from the Collection Account or the Distribution
Account, as the
case may be.
"Additional Yield and Prepayment Amount": With respect to any
Distribution
Date and any Class of Sequential Pay Certificates (other than any
Excluded
Class) entitled to distributions of principal pursuant to Section
4.01(a) on
such Distribution Date, provided that a Yield Maintenance Charge
and/or
Prepayment Premium was actually collected during the related
Collection Period
on a Mortgage Loan or an REO Loan (for purposes of this definition,
the "Prepaid
Loan") in the Loan Group from which such Class of Certificates is
receiving
payments of principal on such Distribution Date, the
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product of (a) such Yield Maintenance Charge and/or Prepayment
Premium, net of
Workout Fees and Principal Recovery Fees payable therefrom and net
of any
portion of such Yield Maintenance Charges and/or Prepayment
Premiums applied
pursuant to Section 4.01(j) to reimburse one or more Classes of
Sequential Pay
Certificates in respect of Realized Losses and/or Additional Trust
Fund Expenses
previously allocated to such Class(es), multiplied by (b) a
fraction, which in
no event will be greater than one, the numerator of which is equal
to the
positive excess, if any, of (i) the Pass-Through Rate for the
subject Class of
Sequential Pay Certificates over (ii) the related Discount Rate,
and the
denominator of which is equal to the positive excess, if any, of
(i) the
Mortgage Rate for the Prepaid Loan over (ii) the related Discount
Rate,
multiplied by (c) a fraction, the numerator of which is equal to
the amount of
principal distributable on the subject Class of Sequential Pay
Certificates on
such Distribution Date (or, for so long as the Class A-4 and Class
A-1A
Certificates are outstanding, principal distributable on the
subject Class of
Sequential Pay Certificates on that Distribution Date from
collections on the
applicable Loan Group that includes the Prepaid Loan), pursuant to
Section
4.01(a), and the denominator of which is equal to the Principal
Distribution
Amount (or, so long as the Class A-4 and Class A-1A Certificates
are
outstanding, the Loan Group 1 Principal Distribution Amount or the
Loan Group 2
Principal Distribution Amount, as applicable, based on which Loan
Group includes
the Prepaid Loan) for such Distribution Date.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event": As defined in Section 10.02(e).
"Adverse Rating Event": With respect to each Rating Agency that has
assigned a rating to any Class of rated Certificates, as of any
date of
determination, the qualification, downgrade or withdrawal of the
rating then
assigned to any such Class of rated Certificates by such Rating
Agency (or the
placing of any such Class of rated Certificates on "negative credit
watch"
status or "ratings outlook negative" status in contemplation of any
such action
with respect thereto).
"Adverse REMIC Event": As defined in Section 10.01(h).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such
specified Person.
For the purposes of this definition, "control" when used with
respect to any
specified Person means the power to direct the management and
policies of such
Person, directly or indirectly, whether through the ownership of
voting
securities, by contract or otherwise and the terms "controlling"
and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof
and supplements hereto.
"Anticipated Repayment Date": For each ARD Loan, the date specified
in the
related Mortgage Note after which the rate per annum at which
interest accrues
on such ARD Loan will increase as specified in the related Mortgage
Note (other
than as a result of a default thereunder).
"Appraisal": With respect to any Mortgage Loan, an appraisal of the
related
Mortgaged Property from an Independent Appraiser selected by the
Special
Servicer or the Master Servicer, as applicable, prepared in
accordance with 12
C.F.R. ss. 225.64 and conducted in accordance with the standards of
the
Appraisal Institute by an Independent Appraiser, which Independent
Appraiser
shall be advised to take into account the factors specified in
Section 3.09(a),
any available environmental, engineering or other third-party
reports, and other
factors that a prudent real estate appraiser would
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consider. The Master Servicer, the Special Servicer, the Trustee
and the Fiscal
Agent may conclusively rely on any Appraisal obtained in accordance
with this
Agreement.
"Appraisal Reduction Amount": With respect to any Required
Appraisal
Mortgage Loan, the excess, if any, of: (a) an amount, as calculated
by the
Special Servicer in consultation with the Controlling Class
Representative, as
of the first Determination Date immediately succeeding the date on
which the
Special Servicer obtains knowledge of the subject Mortgage Loan
becoming a
Required Appraisal Mortgage Loan, if no new Required Appraisal (or
letter update
or internal valuation) is required, or otherwise the date on which
a Required
Appraisal (or letter update or internal valuation, if applicable)
is obtained,
and each anniversary of such Determination Date thereafter so long
as the
subject Mortgage Loan remains a Required Appraisal Mortgage Loan,
equal to the
sum (without duplication) of (i) the Stated Principal Balance of
such Required
Appraisal Mortgage Loan, (ii) to the extent not previously advanced
by or on
behalf of the Master Servicer, the Trustee or the Fiscal Agent, all
unpaid
interest accrued on such Required Appraisal Mortgage Loan through
the most
recent Due Date prior to such Determination Date at a per annum
rate equal to
the related Net Mortgage Rate (exclusive of any portion thereof
that constitutes
Additional Interest), (iii) all accrued but unpaid (from related
collections)
Master Servicing Fees and Special Servicing Fees with respect to
such Required
Appraisal Mortgage Loan and, without duplication, all accrued or
otherwise
incurred but unpaid (from related collections) Additional Trust
Fund Expenses
with respect to such Required Appraisal Mortgage Loan, (iv) all
related
unreimbursed Advances made by or on behalf of the Master Servicer,
the Trustee
or the Fiscal Agent with respect to such Required Appraisal
Mortgage Loan,
together with (A) interest on those Advances and (B) any related
Unliquidated
Advances and (v) all currently due and unpaid real estate taxes and
unfunded
improvement reserves and assessments, insurance premiums and, if
applicable,
ground rents with respect to the related Mortgaged Property; over
(b) an amount
equal to the sum of (i) the Required Appraisal Value and (ii) all
escrows,
reserves and letters of credit held as additional collateral held
with respect
to such Required Appraisal Mortgage Loan. If the Special Servicer
fails to
obtain a Required Appraisal (or letter update or internal
valuation, if
applicable) within the time limit described in Section 3.09(a), and
such
Required Appraisal (or letter update or internal valuation, if
applicable) is
required thereunder, then the Appraisal Reduction Amount for the
related
Required Appraisal Mortgage Loan will equal 25% of the Stated
Principal Balance
of such Required Appraisal Mortgage Loan, to be adjusted upon
receipt of a
Required Appraisal or letter update or internal valuation, if
applicable.
"Appraised Value": With respect to each Mortgaged Property and REO
Property, the appraised value thereof based upon the most recent
Appraisal (or
letter update or internal valuation, if applicable) that is
contained in the
related Servicing File upon which the Master Servicer, the Special
Servicer, the
Trustee and the Fiscal Agent may conclusively rely.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated
Repayment Date, such
Mortgage Loan will accrue Additional Interest at the rate specified
in the
related Mortgage Note and the Mortgagor is required to apply excess
monthly cash
flow generated by the related Mortgaged Property to the repayment
of the
outstanding principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(c).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or
instrument
executed by the Mortgagor in connection with the origination of the
related
Mortgage Loan.
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"Assumed Periodic Payment": With respect to any Balloon Loan for
its Stated
Maturity Date (provided that such Mortgage Loan has not been paid
in full and no
other Liquidation Event has occurred in respect thereof on or
before such Stated
Maturity Date) and for any Due Date thereafter as of which such
Mortgage Loan
remains outstanding and part of the Trust Fund, the Periodic
Payment of
principal and/or interest deemed to be due in respect thereof on
such Due Date
equal to the Periodic Payment that would have been due in respect
of such
Mortgage Loan on such Due Date if the related Mortgagor had been
required to
continue to pay principal in accordance with the amortization
schedule, if any,
and to accrue interest at the Mortgage Rate, in effect immediately
prior to, and
without regard to the occurrence of, its Stated Maturity Date. With
respect to
any REO Loan, for any Due Date therefor as of which the related REO
Property or
any interest therein remains part of the Trust Fund, the Periodic
Payment of
principal and/or interest deemed to be due in respect thereof on
such Due Date
equal to the Periodic Payment that would have been due in respect
of the
predecessor Mortgage Loan on such Due Date had it remained
outstanding (or, if
the predecessor Mortgage Loan was a Balloon Loan and such Due Date
coincides
with or follows what had been its Stated Maturity Date, equal to
the Assumed
Periodic Payment that would have been deemed due in respect of the
predecessor
Mortgage Loan on such Due Date had it remained outstanding).
"Authenticating Agent": Any authenticating agent appointed pursuant
to
Section 8.12 (or, in the absence of any such appointment, the
Trustee).
"Available Distribution Amount": With respect to any Distribution
Date, an
amount equal to (a) the sum of, without duplication, (i) the
aggregate of the
amounts on deposit in the Collection Account and the Distribution
Account as of
the close of business on the related Determination Date and the
amounts
collected by or on behalf of the Master Servicer as of the close of
business on
such Determination Date and required to be deposited in the
Collection Account,
which amounts shall, in the case of the initial Distribution Date,
include the
Closing Date Deposit, (ii) the aggregate amount of any P&I
Advances made by the
Master Servicer, the Trustee or the Fiscal Agent for distribution
on the
Certificates on such Distribution Date pursuant to Section 4.03,
(iii) the
aggregate amount transferred from the REO Account (if established)
to the
Collection Account after the Determination Date in the month of
such
Distribution Date, but on or prior to the P&I Advance Date in
such month,
pursuant to Section 3.16(c), (iv) the aggregate amount deposited by
the Master
Servicer in the Collection Account for such Distribution Date
pursuant to
Section 3.19(a) in connection with Prepayment Interest Shortfalls,
and (v) for
each Distribution Date occurring in March, the aggregate of the
Interest Reserve
Amounts in respect of each Interest Reserve Loan deposited into the
Distribution
Account pursuant to Section 3.05(c), net of (b) the portion of the
amount
described in clause (a) of this definition that represents one or
more of the
following: (i) collected Periodic Payments that are due on a Due
Date following
the end of the related Collection Period, (ii) any amounts payable
or
reimbursable to any Person from (A) the Collection Account pursuant
to clauses
(ii)-(xiv), (xvi) and (xviii) of Section 3.05(a) or (B) the
Distribution Account
pursuant to clauses (ii)-(vi) and (ix) of Section 3.05(b), (iii)
Prepayment
Premiums and Yield Maintenance Charges, (iv) Additional Interest,
(v) with
respect to the Distribution Date occurring in February of each year
and in
January of each year that is not a leap year, the Interest Reserve
Amounts with
respect to the Interest Reserve Loans to be withdrawn from the
Distribution
Account and deposited in the Interest Reserve Account in respect of
such
Distribution Date and held for future distribution pursuant to
Section 3.04(c)
and (vi) any amounts deposited in the Collection Account or the
Distribution
Account in error.
"Balloon Loan": Any Mortgage Loan that by its original terms or by
virtue
of any modification entered into as of the Closing Date provides
for an
amortization schedule extending beyond its Stated Maturity Date.
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"Balloon Payment": With respect to any Balloon Loan as of any date
of
determination, the Scheduled Payment payable on the Stated Maturity
Date of such
Mortgage Loan.
"Banc of America Securities": Banc of America Securities LLC, or
its
successor in interest.
"Bank of America": Bank of America, N.A., a national banking
association,
or its successor in interest.
"Bank of America Mortgage Loan Purchase Agreement": That certain
mortgage
loan purchase agreement, dated as of March 21, 2005, between the
Depositor and
Bank of America and relating to the transfer of the Bank of America
Mortgage
Loans to the Depositor.
"Bank of America Mortgage Loans": Each of the Mortgage Loans
transferred
and assigned to the Depositor pursuant to the Bank of America
Mortgage Loan
Purchase Agreement.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time to
time (Title 11 of the United States Code).
"Book-Entry Certificate": Any Certificate registered in the name of
the
Depository or its nominee.
"Book-Entry Non-Registered Certificate": Any Book-Entry Certificate
that is
a Non-Registered Certificate.
"Breach": As defined in Section 2.03(a).
"Broker Strip": With respect to each Broker Strip Loan, the right
to
receive interest accrued on the principal balance of such Mortgage
Loan at the
Broker Strip Rate for such Mortgage Loan.
"Broker Strip Loans": The Mortgage Loans listed on Exhibit Q
hereto.
"Broker Strip Payee": With respect to any Broker Strip Loan, the
"Broker
Strip Payee" specified on Exhibit Q hereto with respect to such
Mortgage Loan.
"Broker Strip Rate": With respect to each Broker Strip Loan, the
"Broker
Strip Rate" specified on Exhibit Q hereto with respect to such
Mortgage Loan.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which
banking institutions in New York, New York or the city in which the
Corporate
Trust Office of the Trustee (which as of the Closing Date is
Chicago, Illinois),
or the offices of the Master Servicer (which as of the Closing Date
is Kansas
City, Missouri), or the offices of the Special Servicer (which as
of the Closing
Date is New York, New York), are located, are authorized or
obligated by law or
executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation
and
Liability Act of 1980, as amended.
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"Certificate": Any one of the Merrill Lynch Mortgage Trust
2005-MKB2,
Commercial Mortgage Pass-Through Certificates, Series 2005-MKB2, as
executed by
the Certificate Registrar and authenticated and delivered hereunder
by the
Authenticating Agent.
"Certificate Factor": With respect to any Class of Regular
Certificates as
of any date of determination, a fraction, expressed as a decimal
carried to at
least eight places, the numerator of which is the then current
Class Principal
Balance, Class XC Notional Amount or Class XP Notional Amount, as
applicable, of
such Class of Regular Certificates and the denominator of which is
the Original
Class Principal Balance or Original Notional Amount, as the case
may be, of such
Class of Regular Certificates.
"Certificate Notional Amount": With respect to any Class XC or
Class XP
Certificate, as of any date of determination, the then notional
amount of such
Certificate equal to the product of (a) the Percentage Interest
evidenced by
such Certificate, multiplied by (b) the then Class XC or Class XP
Notional
Amount, as applicable.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person
who is the beneficial owner of such Certificate as reflected on the
books of the
Depository or on the books of a Depository Participant or on the
books of an
indirect participating brokerage firm for which a Depository
Participant acts as
agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding
principal
amount of such Certificate equal to the product of (a) the
Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class
Principal
Balance of the Class of Certificates to which such Certificate
belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained
and the registrar appointed pursuant to Section 5.02(a).
"Certificateholder": The Person in whose name a Certificate is
registered
in the Certificate Register, except that (i) neither a Disqualified
Organization
nor a Disqualified Non-United States Tax Person shall be Holder of
a Residual
Certificate for any purpose hereof and, (ii) solely for the
purposes of giving
any consent, approval or waiver pursuant to this Agreement that
relates to any
of the Depositor, any Mortgage Loan Seller, the Master Servicer,
the Special
Servicer, the Trustee or the Fiscal Agent in its respective
capacity as such
(except with respect to amendments or waivers referred to in
Sections 7.04 and
11.01 hereof and any consent, approval or waiver required or
permitted to be
made by the Plurality Subordinate Certificateholder or the
Controlling Class
Representative and any election, removal or replacement of the
Special Servicer
or the Controlling Class Representative pursuant to Section 6.09),
any
Certificate registered in the name of the Depositor, any Mortgage
Loan Seller,
the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent, as
the case may be, or any Certificate registered in the name of any
of their
respective Affiliates, shall be deemed not to be outstanding, and
the Voting
Rights to which it is entitled shall not be taken into account in
determining
whether the requisite percentage of Voting Rights necessary to
effect any such
consent, approval or waiver that relates to it has been obtained.
The
Certificate Registrar shall be entitled to request and conclusively
rely upon a
certificate of the Depositor, the Master Servicer or the Special
Servicer in
determining whether a Certificate is registered in the name of an
Affiliate of
such Person. All references herein to "Holders" or
"Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly
exercise such
rights through the Depository and the Depository Participants,
except as
otherwise specified herein; provided, however, that the parties
hereto shall be
required to recognize as a
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"Holder" or "Certificateholder" only the Person in whose name a
Certificate
is registered in the Certificate Register.
"Certification Parties": As defined in Section 8.16(b).
"Certifying Person": As defined in Section 8.16(b).
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Senior Certificates": The Class A-1, Class A-2, Class A-3,
Class
A-SB, Class A-4 and Class A-1A Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-4 Certificate": Any one of the Certificates with a "Class
A-4"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-SB Certificate": Any one of the Certificates with a "Class
A-SB"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-SB Planned Principal Balance": With respect to any
Distribution
Date, the targeted Class Principal Balance of the Class A-SB
Certificates for
such date set forth on Exhibit S attached hereto.
"Class AJ Certificate": Any one of the Certificates with a "Class
AJ"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
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"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of any
Class of
Sequential Pay Certificates outstanding from time to time. As of
the Closing
Date, the Class Principal Balance of
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each Class of Sequential Pay Certificates shall equal the Original
Class
Principal Balance thereof. On each Distribution Date, the Class
Principal
Balance of each Class of Sequential Pay Certificates shall be
reduced by the
amount of any distributions of principal made thereon on such
Distribution Date
pursuant to Section 4.01 or 9.01, as applicable, and shall be
further reduced by
the amount of any Realized Losses and Additional Trust Fund
Expenses allocated
thereto on such Distribution Date pursuant to Section 4.04(a). The
respective
Class Principal Balances of any Classes of Sequential Pay
Certificates to which
there has been allocated unreimbursed Realized Losses and
Additional Trust Fund
Expenses shall be increased, in sequential order beginning with the
most senior
affected Class of Sequential Pay Certificates, by the amount of any
recoveries
of Nonrecoverable Advances and/or interest thereon which were
reimbursed and/or
paid in a prior Collection Period from the principal portion of
general
collections on the Mortgage Pool and which are included in the
Principal
Distribution Amount for the current Distribution Date; provided
that the Class
Principal Balance of any such Class of Sequential Pay Certificates
shall in no
event be increased by more than the amount of unreimbursed Realized
Losses and
Additional Trust Fund Expenses previously allocated thereto (which
unreimbursed
Realized Losses and Additional Trust Fund Expenses shall be reduced
by the
amount of the increase in such Class Principal Balance); and
provided, further,
that the aggregate increase in the Class Principal Balances of the
respective
Classes of Sequential Pay Certificates on any Distribution Date
shall not exceed
the excess, if any, of (i) the aggregate Stated Principal Balance
of, and all
Unliquidated Advances with respect to, the Mortgage Pool that will
be
outstanding immediately following such Distribution Date, over (ii)
the
aggregate of the Class Principal Balances of the respective Classes
of
Sequential Pay Certificates outstanding immediately following the
distributions
to be made on such Distribution Date, but prior to any such
increase in any of
those Class Principal Balances. Distributions in respect of a
reimbursement of
Realized Losses and Additional Trust Fund Expenses previously
allocated to a
Class of Sequential Pay Certificates shall not constitute
distributions of
principal and shall not result in reduction of the related Class
Principal
Balance.
"Class Q Certificate": Any one of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I"
designation on the face thereof, substantially in the form of
Exhibit A-7
attached hereto, and evidencing the sole class of "residual
interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II"
designation on the face thereof, substantially in the form of
Exhibit A-7
attached hereto, and evidencing the sole class of "residual
interests" in REMIC
II for purposes of the REMIC Provisions.
"Class X Certificates": The Class XC and Class XP Certificates.
"Class XC Certificate": Any one of the Certificates with a "Class
XC"
designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing multiple "regular interests" in
REMIC II for
purposes of the REMIC Provisions.
"Class XC Components": Each of the Components identified in the
table in
the definition of "Component" as being a Class XC Component.
"Class XC Notional Amount": With respect to the Class XC
Certificates and
any date of determination, the sum of the then Component Notional
Amounts of all
of the Class XC Components.
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"Class XC Strip Rate": With respect to any Class XC Component that
does not
have a Corresponding Class XP Component, for any Distribution Date,
a rate per
annum equal to (i) the Weighted Average Net Mortgage Pass-Through
Rate for such
Distribution Date, minus (ii) the Pass-Through Rate for the
Corresponding
Certificates; and in the case of any Class XC Component that has a
Corresponding
Class XP Component, for any Distribution Date, a rate per annum
equal to (i) for
any Distribution Date occurring on or before the Class XP
Termination Date for
such Corresponding Class XP Component, (x) the Weighted Average Net
Mortgage
Pass-Through Rate for such Distribution Date minus (y) the sum of
the
Pass-Through Rate for the Corresponding Certificates for such
Distribution Date
and the Class XP Strip Rate for such Corresponding Class XP
Component for such
Distribution Date, and (ii) for any Distribution Date occurring
after the Class
XP Termination Date for such Corresponding Class XP Component, a
rate per annum
equal to (x) the Weighted Average Net Mortgage Pass-Through Rate
for such
Distribution Date, minus (y) the Pass-Through Rate for the
Corresponding
Certificates. In no event, however, shall any Class XC Strip Rate
be less than
zero.
"Class XP Certificate": Any one of the Certificates with a "Class
XP"
designation on the face thereof, substantially in the form of
Exhibit A-2
attached hereto, and evidencing multiple "regular interests" in
REMIC II for
purposes of the REMIC Provisions.
"Class XP Components": Each of the Components identified in the
table in
the definition of "Component" as being a Class XP Component.
"Class XP Notional Amount":
(i) With respect to any Distribution Date on or prior to the
Distribution Date in September 2005, the sum of (a) the lesser of
$47,222,000 and the Class Principal Balance of the Class A-1
Certificates
outstanding from time to time, (b) the lesser of $214,978,000 and
the Class
Principal Balance of the Class A-1A Certificates outstanding from
time to
time, and (c) the Class Principal Balance of the Class A-2, Class
A-3,
Class A-SB, Class A-4, Class AJ, Class B, Class C, Class D, Class
E, Class
F, Class G, Class H, Class J, Class K and Class L Certificates
outstanding
from time to time;
(ii) With respect to any Distribution Date after the Distribution
Date
in September 2005 through and including the Distribution Date in
March
2006, the sum of (a) the lesser of $43,727,000 and the Class
Principal
Balance of the Class A-1 Certificates outstanding from time to
time, (b)
the lesser of $214,722,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, and (c) the Class
Principal Balance of the Class A-2, Class A-3, Class A-SB, Class
A-4, Class
AJ, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J,
Class K and Class L Certificates outstanding from time to time;
(iii) With respect to any Distribution Date after the Distribution
Date in March 2006 through and including the Distribution Date in
September
2006, the sum of (a) the lesser of $24,584,000 and the Class
Principal
Balance of the Class A-1 Certificates outstanding from time to
time, (b)
the lesser of $210,845,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, and (c) the Class
Principal Balance of the Class A-2, Class A-3, Class A-SB, Class
A-4, Class
AJ, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J,
Class K and Class L Certificates outstanding from time to time;
(iv) With respect to any Distribution Date after the Distribution
Date
in September 2006 through and including the Distribution Date in
March
2007, the sum of (a) the lesser of $3,249,000 and the Class
Principal
Balance of the Class A-1 Certificates outstanding from time
-16-
to time, (b) the lesser of $206,070,000 and the Class Principal
Balance of
the Class A-1A Certificates outstanding from time to time, and (c)
the
Class Principal Balance of the Class A-2, Class A-3, Class A-SB,
Class A-4,
Class AJ, Class B, Class C, Class D, Class E, Class F, Class G,
Class H,
Class J, Class K and Class L Certificates outstanding from time to
time;
(v) With respect to any Distribution Date after the Distribution
Date
in March 2007 through and including the Distribution Date in
September
2007, the sum of (a) the lesser of $210,330,000 and the Class
Principal
Balance of the Class A-2 Certificates outstanding from time to
time, (b)
the lesser of $201,091,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class A-3, Class A-SB, Class A-4, Class AJ, Class B,
Class
C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates
outstanding from time to time, and (d) the lesser of $5,122,000 and
the
Class Principal Balance of the Class K Certificates outstanding
from time
to time;
(vi) With respect to any Distribution Date after the Distribution
Date
in September 2007 through and including the Distribution Date in
March
2008, the sum of (a) the lesser of $189,965,000 and the Class
Principal
Balance of the Class A-2 Certificates outstanding from time to
time, (b)
the lesser of $196,313,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class A-3, Class A-SB, Class A-4, Class AJ, Class B,
Class
C, Class D, Class E, Class F, Class G and Class H Certificates
outstanding
from time to time, and (d) the lesser of $1,249,000 and the Class
Principal
Balance of the Class J Certificates outstanding from time to time;
(vii) With respect to any Distribution Date after the Distribution
Date in March 2008 through and including the Distribution Date in
September
2008, the sum of (a) the lesser of $169,398,000 and the Class
Principal
Balance of the Class A-2 Certificates outstanding from time to
time, (b)
the lesser of $191,636,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class A-3, Class A-SB, Class A-4, Class AJ, Class B,
Class
C, Class D, Class E, Class F and Class G Certificates outstanding
from time
to time, and (d) the lesser of $4,869,000 and the Class Principal
Balance
of the Class H Certificates outstanding from time to time;
(viii) With respect to any Distribution Date after the Distribution
Date in September 2008 through and including the Distribution Date
in March
2009, the sum of (a) the lesser of $149,595,000 and the Class
Principal
Balance of the Class A-2 Certificates outstanding from time to
time, (b)
the lesser of $187,134,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class A-3, Class A-SB, Class A-4, Class AJ, Class B,
Class
C, Class D, Class E and Class F Certificates outstanding from time
to time,
and (d) the lesser of $6,020,000 and the Class Principal Balance of
the
Class G Certificates outstanding from time to time;
(ix) With respect to any distribution date after the Distribution
Date
in March 2009 through and including the Distribution Date in
September
2009, the sum of (a) the lesser of $79,273,000 and the Class
Principal
Balance of the Class A-2 Certificates outstanding from time to
time, (b)
the lesser of $174,055,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class A-3, Class A-SB, Class A-4, Class AJ, Class B,
Class
C, Class D and E Certificates outstanding from time to time, and
(d) the
lesser of $14,737,000 and the Class Principal Balance of the Class
F
Certificates outstanding from time to time;
-17-
(x) With respect to any distribution date after the Distribution
Date
in September 2009 through and including the Distribution Date in
March
2010, the sum of (a) the lesser of $13,355,000 and the Class
Principal
Balance of the Class A-SB Certificates outstanding from time to
time, (b)
the lesser of $162,597,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class A-4, Class AJ, Class B, Class C, Class D and
Class E
Certificates outstanding from time to time, and (d) the lesser of
$6,173,000 and the Class Principal Balance of the Class F
Certificates
outstanding from time to time;
(xi) With respect to any Distribution Date after the Distribution
Date
in March 2010 through and including the Distribution Date in
September
2010, the sum of (a) the lesser of $331,878,000 and the Class
Principal
Balance of the Class A-4 Certificates outstanding from time to
time, (b)
the lesser of $158,387,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class AJ, Class B, Class C and Class D Certificates
outstanding from time to time, and (d) the lesser of $11,822,000
and the
Class Principal Balance of the Class E Certificates outstanding
from time
to time;
(xii) With respect to any Distribution Date after the Distribution
Date in September 2010 through and including the Distribution Date
in March
2011, the sum of (a) the lesser of $310,904,000 and the Class
Principal
Balance of the Class A-4 Certificates outstanding from time to
time, (b)
the lesser of $154,384,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class AJ, Class B, Class C and Class D Certificates
outstanding from time to time, and (d) the lesser of $4,982,000 and
the
Class Principal Balance of the Class E Certificates outstanding
from time
to time;
(xiii) With respect to any Distribution Date after the Distribution
Date in March 2011 through and including the Distribution Date in
September
2011, the sum of (a) the lesser of $297,649,000 and the Class
Principal
Balance of the Class A-4 Certificates outstanding from time to
time, (b)
the lesser of $148,904,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class AJ, Class B and Class C Certificates
outstanding from
time to time, and (d) the lesser of $19,870,000 and the Class
Principal
Balance of the Class D Certificates outstanding from time to time;
(xiv) With respect to any Distribution Date after the Distribution
Date in September 2011 through and including the Distribution Date
in March
2012, the sum of (a) the lesser of $268,915,000 and the Class
Principal
Balance of the Class A-4 Certificates outstanding from time to
time, (b)
the lesser of $120,172,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class AJ, Class B and Class C Certificates
outstanding from
time to time, and (d) the lesser of $13,714,000 and the Class
Principal
Balance of the Class D Certificates outstanding from time to time;
(xv) With respect to any Distribution Date after the Distribution
Date
in March 2012 through and including the Distribution Date in
September
2012, the sum of (a) the lesser of $256,919,000 and the Class
Principal
Balance of the Class A-4 Certificates outstanding from time to
time, (b)
the lesser of $117,242,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class AJ, Class
-18-
B and Class C Certificates outstanding from time to time, and (d)
the
lesser of $8,188,000 and the Class Principal Balance of the Class D
Certificates outstanding from time to time;
(xvi) With respect to any Distribution Date after the Distribution
Date in September 2012 through and including the Distribution Date
in March
2013, the sum of (a) the lesser of $238,280,000 and the Class
Principal
Balance of the Class A-4 Certificates outstanding from time to
time, (b)
the lesser of $114,505,000 and the Class Principal Balance of the
Class
A-1A Certificates outstanding from time to time, (c) the Class
Principal
Balance of the Class AJ, Class B and Class C Certificates
outstanding from
time to time, and (d) the lesser of $2,924,000 and the Class
Principal
Balance of the Class D Certificates outstanding from time to time;
and
(xvii) With respect to any Distribution Date after the Distribution
Date in March 2013, $0.
"Class XP Reference Rate": For any Distribution Date, the rate per
annum
corresponding to such Distribution Date on Exhibit L.
"Class XP Strip Rate": With respect to any Class XP Component for
any
Distribution Date, a rate per annum equal to (1) for any
Distribution Date
occurring on or before the Class XP Termination Date for such Class
XP
Component, the excess, if any, of (x) the lesser of (i) the
Weighted Average Net
Mortgage Pass-Through Rate for such Distribution Date and (ii) the
Class XP
Reference Rate for such Distribution Date, over (y) the
Pass-Through Rate in
effect for such Distribution Date for the Corresponding
Certificates (provided
that in no event shall any Class XP Strip Rate be less than zero),
and (2) for
any Distribution Date occurring after the Class XP Termination Date
for such
Class XP Component, 0% per annum.
"Class XP Termination Date": With respect to each Class XP
Component, the
Distribution Date that occurs in the month and year specified in
the table in
the definition of "Component".
"Class Z Certificate": Any one of the Certificates with a "Class Z"
designation on the face thereof, substantially in the form of
Exhibit A-8
attached hereto, and evidencing a proportionate interest in Grantor
Trust Z.
"Closing Date": March 29, 2005.
"Closing Date Deposit": With respect to KeyBank, a cash amount to
be
deposited by KeyBank pursuant to the KeyBank Mortgage Loan Purchase
Agreement,
in respect of the Mortgage Loan (identified as loan number 58 on
the Mortgage
Loan Schedule) sold by KeyBank to the Depositor that does not have
its first
Scheduled Payment due until May 2005, which cash amount represents
the aggregate
amount of interest that would have accrued during the entire month
of March 2005
at the related Net Mortgage Rate on the related Cut-off Date
Balance. The
Closing Date Deposit is $21,925.35.
"Closing Date Deposit Mortgage Loan": Any Mortgage Loan in respect
of which
a Closing Date Deposit is required to be made by the related
Mortgage Loan
Seller pursuant to the applicable Mortgage Loan Purchase Agreement.
"CMSA": The Commercial Mortgage Securities Association, or any
association
or organization that is a successor thereto. If neither such
association nor any
successor remains in
-19-
existence, "CMSA" shall be deemed to refer to such other
association or
organization as may exist whose principal membership consists of
servicers,
trustees, issuers, placement agents and underwriters generally
involved in the
commercial mortgage loan securitization industry, which is the
principal such
association or organization in the commercial mortgage loan
securitization
industry and one of whose principal purposes is the establishment
of industry
standards for reporting transaction-specific information relating
to commercial
mortgage-backed pass-through certificates and commercial
mortgage-backed bonds
and the commercial mortgage loans and foreclosed properties
underlying or
backing them to investors holding or owning such certificates or
bonds, and any
successor to such other association or organization. If an
organization or
association described in one of the preceding sentences of this
definition does
not exist, "CMSA" shall be deemed to refer to such other
association or
organization as shall be selected by the Master Servicer and
reasonably
acceptable to the Trustee, the Special Servicer and the Controlling
Class
Representative.
"CMSA Advance Recovery Report": A report substantially in the form
of, and
containing the information called for in, the downloadable form of
the "Advance
Recovery Report" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Bond Level File": The monthly report substantially in the
form of,
and containing the information called for in, the downloadable form
of the "Bond
Level File" available as of the Closing Date on the CMSA Website,
or such other
form for the presentation of such information and containing such
additional
information as may from time to time be recommended by the CMSA for
commercial
mortgage-backed securities transactions generally.
"CMSA Collateral Summary File": A report substantially in the form
of, and
containing the information called for in, the downloadable form of
the
"Collateral Summary File" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Comparative Financial Status Report": A report substantially
in the
form of, and containing the information called for in, the
downloadable form of
the "Comparative Financial Status Report" available as of the
Closing Date on
the CMSA Website, or such other form for the presentation of such
information
and containing such additional information as may from time to time
be
recommended by the CMSA for commercial mortgage-backed securities
transactions
generally.
"CMSA Delinquent Loan Status Report": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Delinquent Loan Status Report" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of
the
"Financial File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
-20-
"CMSA Historical Liquidation Report": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Historical Liquidation Report" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A
report substantially in the form of, and containing the information
called for
in, the downloadable form of the "Historical Loan Modification and
Corrected
Mortgage Loan Report" available as of the Closing Date on the CMSA
Website, or
such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Loan Level Reserve/LOC Report": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Loan Level Reserve Report" on the CMSA Website, or in such other
form for the
presentation of such information and containing such additional
information as
may from time to time be recommended by the CMSA for commercial
mortgage
securities transactions generally.
"CMSA Loan Periodic Update File": The monthly report substantially
in the
form of, and containing the information called for in, the
downloadable form of
the "Loan Periodic Update File" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Loan Setup File": A report substantially in the form of, and
containing the information called for in, the downloadable form of
the "Loan
Setup File" available as of the Closing Date on the CMSA Website,
or such other
form for the presentation of such information and containing such
additional
information as may from time to time be recommended by the CMSA for
commercial
mortgage-backed securities transactions generally.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and
containing the information called for in, the downloadable form of
the "NOI
Adjustment Worksheet" available as of the Closing Date on the CMSA
Website, or
such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally, and
in any event,
shall present the computations made in accordance with the
methodology described
in such form to "normalize" the full year net operating income, net
cash flow
and debt service coverage numbers used in the other reports
required by this
Agreement.
"CMSA Operating Statement Analysis Report": A report substantially
in the
form of, and containing the information called for in, the
downloadable form of
the "Operating Statement Analysis Report" available as of the
Closing Date on
the CMSA Website or in such other form for the presentation of such
information
and containing such additional information as may from time to time
be
recommended by the CMSA for commercial mortgage-backed securities
transactions
generally.
"CMSA Property File": A report substantially in the form of, and
containing
the information called for in, the downloadable form of the
"Property File"
available as of the Closing Date on the CMSA Website, or such other
form for the
presentation of such information and containing such
-21-
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Reconciliation of Funds Report": A report substantially in
the form
of, and containing the information called for in, the downloadable
form of the
"Reconciliation of Funds Report" available as of the Closing Date
on the CMSA
Website, or in such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA REO Status Report": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "REO
Status Report" available on the CMSA Website, or in such other form
for the
presentation of such information and containing such additional
information as
may from time to time be recommended by the CMSA for commercial
mortgage
securities transactions generally.
"CMSA Servicer Watch List": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Servicer
Watch List" available as of the Closing Date on the CMSA Website,
or in such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Special Servicer Loan File": A report substantially in the
form of,
and containing the information called for in, the downloadable form
of the
"Special Servicer Loan File" on the CMSA Website, or in such other
form for the
presentation of such information and containing such additional
information as
may from time to time be recommended by the CMSA for commercial
mortgage
securities transactions generally.
"CMSA Website": The CMSA's Website located at "www.cmbs.org" or
such other
primary website as the CMSA may establish for dissemination of its
report forms.
"Code": The Internal Revenue Code of 1986, as amended, and
applicable
temporary or final regulations of the U.S. Department of the
Treasury
promulgated thereunder.
"Collection Account": One or more segregated accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the
Trustee in trust for the Certificateholders, which shall be
entitled: "KeyCorp
Real Estate Capital Markets, Inc., as Master Servicer for LaSalle
Bank National
Association, as Trustee, on behalf of and in trust for the
registered holders of
Merrill Lynch Mortgage Trust 2005-MKB2, Commercial Mortgage
Pass-Through
Certificates, Series 2005-MKB2."
"Collection Period": With respect to any Distribution Date, the
period
commencing on the day immediately following the Determination Date
for the
preceding Distribution Date (or, in the case of the initial
Distribution Date,
commencing immediately following the Cut-off Date) and ending on
and including
the related Determination Date.
"Component": Any of the 65 components of the Class XC Certificates
(the
"Class XC Components") and the 59 components of the Class XP
Certificates (the
"Class XP Components") listed in the following table. The following
table also
sets forth the month and year in which the Class XP Termination
Date for each
Class XP Component occurs and the Corresponding Certificates for
each Component.
-22-
|
---------------------- ------------------- ------------------------
------------------------ Class Designation of Class XC Class XP
Class XP Corresponding Component Component Termination Date
Certificates ---------------------- -------------------
------------------------ ------------------------ XC-A-1-1 N/A N/A
A-1 ---------------------- -------------------
------------------------ ------------------------ XC-A-1-2 XP-A-1-2
September 2005 A-1 ---------------------- -------------------
------------------------ ------------------------ XC-A-1-3 XP-A-1-3
March 2006 A-1 ---------------------- -------------------
------------------------ ------------------------ XC-A-1-4 XP-A-1-4
September 2006 A-1 ---------------------- -------------------
------------------------ ------------------------ XC-A-1-5 XP-A-1-5
March 2007 A-1 ---------------------- -------------------
------------------------ ------------------------ XC-A-1A-1 N/A N/A
A-1A ---------------------- -------------------
------------------------ ------------------------ XC-A-1A-2
XP-A-1A-2 September 2005 A-1A ----------------------
------------------- ------------------------
------------------------ XC-A-1A-3 XP-A-1A-3 March 2006 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-4 XP-A-1A-4 September 2006 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-5 XP-A-1A-5 March 2007 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-6 XP-A-1A-6 September 2007 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-7 XP-A-1A-7 March 2008 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-8 XP-A-1A-8 September 2008 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-9 XP-A-1A-9 March 2009 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-10 XP-A-1A-10 September 2009 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-11 XP-A-1A-11 March 2010 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-12 XP-A-1A-12 September 2010 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-13 XP-A-1A-13 March 2011 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-14 XP-A-1A-14 September 2011 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-15 XP-A-1A-15 March 2012 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-16 XP-A-1A-16 September 2012 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-1A-17 XP-A-1A-17 March 2013 A-1A
---------------------- ------------------- ------------------------
------------------------ XC-A-2-1 XP-A-2-1 March 2007 A-2
---------------------- ------------------- ------------------------
------------------------ XC-A-2-2 XP-A-2-2 September 2007 A-2
---------------------- ------------------- ------------------------
------------------------ XC-A-2-3 XP-A-2-3 March 2008 A-2
---------------------- ------------------- ------------------------
------------------------ XC-A-2-4 XP-A-2-4 September 2008 A-2
---------------------- ------------------- ------------------------
------------------------ XC-A-2-5 XP-A-2-5 March 2009 A-2
---------------------- ------------------- ------------------------
------------------------ XC-A-2-6 XP-A-2-6 September 2009 A-2
---------------------- ------------------- ------------------------
------------------------ XC-A-3 XP-A-3 September 2009 A-3
---------------------- ------------------- ------------------------
------------------------ XC-A-SB-1 XP-A-SB-1 September 2009 A-SB
---------------------- ------------------- ------------------------
------------------------ XC-A-SB-2 XP-A-SB-2 March 2010 A-SB
---------------------- ------------------- ------------------------
------------------------ XC-A-4-1 XP-A-4-1 March 2010 A-4
---------------------- ------------------- ------------------------
------------------------ XC-A-4-2 XP-A-4-2 September 2010 A-4
---------------------- ------------------- ------------------------
------------------------ XC-A-4-3 XP-A-4-3 March 2011 A-4
---------------------- ------------------- ------------------------
------------------------ XC-A-4-4 XP-A-4-4 September 2011 A-4
---------------------- ------------------- ------------------------
------------------------ XC-A-4-5 XP-A-4-5 March 2012 A-4
---------------------- ------------------- ------------------------
------------------------ XC-A-4-6 XP-A-4-6 September 2012 A-4
---------------------- ------------------- ------------------------
------------------------ XC-A-4-7 XP-A-4-7 March 2013 A-4
---------------------- ------------------- ------------------------
------------------------ XC-AJ XP-AJ March 2013 AJ
---------------------- ------------------- ------------------------
------------------------ XC-B XP-B March 2013 B
---------------------- ------------------- ------------------------
------------------------ XC-C XP-C March 2013 C
---------------------- ------------------- ------------------------
------------------------ XC-D-1 XP-D-1 March 2011 D
---------------------- ------------------- ------------------------
------------------------ XC-D-2 XP-D-2 September 2011 D
---------------------- ------------------- ------------------------
------------------------
|
-23-
|
---------------------- ------------------- ------------------------
------------------------ Class Designation of Class XC Class XP
Class XP Corresponding Component Component Termination Date
Certificates ---------------------- -------------------
------------------------ ------------------------ XC-D-3 XP-D-3
March 2012 D ---------------------- -------------------
------------------------ ------------------------ XC-D-4 XP-D-4
September 2012 D ---------------------- -------------------
------------------------ ------------------------ XC-D-5 XP-D-5
March 2013 D ---------------------- -------------------
------------------------ ------------------------ XC-E-1 XP-E-1
March 2010 E ---------------------- -------------------
------------------------ ------------------------ XC-E-2 XP-E-2
September 2010 E ---------------------- -------------------
------------------------ ------------------------ XC-E-3 XP-E-3
March 2011 E ---------------------- -------------------
------------------------ ------------------------ XC-F-1 XP-F-1
March 2009 F ---------------------- -------------------
------------------------ ------------------------ XC-F-2 XP-F-2
September 2009 F ---------------------- -------------------
------------------------ ------------------------ XC-F-3 XP-F-3
March 2010 F ---------------------- -------------------
------------------------ ------------------------ XC-G-1 XP-G-1
September 2008 G ---------------------- -------------------
------------------------ ------------------------ XC-G-2 XP-G-2
March 2009 G ---------------------- -------------------
------------------------ ------------------------ XC-H-1 XP-H-1
March 2008 H ---------------------- -------------------
------------------------ ------------------------ XC-H-2 XP-H-2
September 2008 H ---------------------- -------------------
------------------------ ------------------------ XC-J-1 XP-J-1
September 2007 J ---------------------- -------------------
------------------------ ------------------------ XC-J-2 XP-J-2
March 2008 J ---------------------- -------------------
------------------------ ------------------------ XC-K-1 XP-K-1
March 2007 K ---------------------- -------------------
------------------------ ------------------------ XC-K-2 XP-K-2
September 2007 K ---------------------- -------------------
------------------------ ------------------------ XC-L XP-L March
2007 L ---------------------- -------------------
------------------------ ------------------------ XC-M N/A N/A M
---------------------- ------------------- ------------------------
------------------------ XC-N N/A N/A N ----------------------
------------------- ------------------------
------------------------ XC-P N/A N/A P ----------------------
------------------- ------------------------
------------------------ XC-Q N/A N/A Q ----------------------
------------------- ------------------------
------------------------
|
"Component Notional Amount": With respect to each Component and any
date of
determination, an amount equal to the then REMIC I Principal
Balance of its
Corresponding REMIC I Regular Interest.
"Controlling Class": As of any date of determination, the most
subordinate
Class of Sequential Pay Certificates (based on the payment
priorities set forth
in Section 4.01(a)) that has a Class Principal Balance that is
greater than 25%
of the Original Class Principal Balance thereof (without
considering any
Appraisal Reduction Amounts); provided, however, that if no Class
of Sequential
Pay Certificates has a Class Principal Balance that satisfies such
requirement,
then the Controlling Class shall be the most subordinate
outstanding Class of
Sequential Pay Certificates (based on the payment priorities set
forth in
Section 4.01(a)) with a Class Principal Balance greater than zero.
With respect
to determining and exercising the rights of the Controlling Class,
the Class A
Senior Certificates shall collectively be deemed a single Class of
Certificates.
"Controlling Class Representative": As defined in Section 3.25.
"Corporate Trust Office": The principal corporate trust office of
the
Trustee at which at any particular time its asset-backed securities
trust
business with respect to this Agreement shall be administered,
which office at
the date of the execution of this Agreement is located at 135 South
LaSalle
Street, Suite 1625, Chicago, Illinois 60603, Attention: Global
Securitization
Trust Services Group--
-24-
Merrill Lynch Mortgage Investors, Inc., Commercial Mortgage
Pass-Through
Certificates, Series 2005-MKB2.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially
Serviced Mortgage Loan but has ceased to be a Specially Serviced
Mortgage Loan
in accordance with the definition of "Specially Serviced Mortgage
Loan".
"Corresponding Certificates": With respect to any REMIC I Regular
Interest,
the Class of Sequential Pay Certificates for which such REMIC I
Regular Interest
is the Corresponding REMIC I Regular Interest or one of the
Corresponding REMIC
I Regular Interests. With respect to any Component, the Class of
Sequential Pay
Certificates designated as the "Corresponding Certificates" for
such Component
in the definition of "Component".
"Corresponding Class XP Component": With respect to any Class XC
Component,
the Class XP Component (if any) that, with the replacement of "XP-"
with "XC-"
at the beginning of its designation, has the same alphanumeric
designation as
such Class XC Component.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary
Statement with respect to any Class of Sequential Pay Certificates.
With respect
to any Component, the REMIC I Regular Interest that, with the
replacement of "L"
with "XC-" or "XP-", as applicable, at the beginning of its
designation, has the
same alphabetic or alphanumeric designation as such Component.
"Crossed Loan": As defined in Section 2.03(a).
"Crossed Loan Group": As defined in Section 2.03(a).
"Custodian": A Person who is at any time appointed by the Trustee
pursuant
to Section 8.11 as a document custodian for the Mortgage Files,
which Person
shall not be the Depositor, a Mortgage Loan Seller or an Affiliate
of the
Depositor or a Mortgage Loan Seller. If no such custodian has been
appointed or
if such custodian has been so appointed, but the Trustee shall have
terminated
such appointment, then the Trustee shall be the Custodian.
"Cut-off Date": Individually and collectively, as the context may
require:
with respect to each Mortgage Loan originated prior to February
2005, the
related Due Date of such Mortgage Loan in March 2005; and with
respect to any
Mortgage Loan that was originated in February 2005 and has the Due
Date of its
first Scheduled Payment in April 2005, March 1, 2005; and with
respect to any
Mortgage Loan that was originated in March 2005 and has the Due
Date of its
first Scheduled Payment in May 2005, the date of origination of
such Mortgage
Loan.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding
principal balance of such Mortgage Loan as of the Cut-off Date,
after
application of all unscheduled payments of principal received on or
before such
date and the principal component of all Periodic Payments due on or
before such
date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan,
as of any
date of determination, the ratio of (x) the annualized Net
Operating Income
(before payment of any debt service on such Mortgage Loan generated
by the
related Mortgaged Property during the most recently ended period of
not less
than six months and not more than twelve months for which financial
statements,
if available (whether or not audited) have been received by or on
behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the
Master Servicer
or the Special Servicer (following the Closing
-25-
Date), to (y) twelve times the amount of the Periodic Payment in
effect for such
Mortgage Loan as of such date of determination.
"Default Charges": Penalty Interest and/or late payment charges
that are
paid or payable, as the context may require, in respect of any
Mortgage Loan or
REO Loan.
"Defaulted Mortgage Loan": A Mortgage Loan: (i) that is (A)
delinquent 60
days or more in respect of a Periodic Payment (not including the
Balloon
Payment) or (B) delinquent in respect of its Balloon Payment
(unless the Master
Servicer has, within 60 days after the Due Date of such Balloon
Payment,
received written evidence from an institutional lender of such
lender's binding
commitment to refinance such Mortgage Loan within 150 days after
the Due Date of
such Balloon Payment (provided that the Mortgagor continues to make
the Assumed
Periodic Payment and if such refinancing does not occur during such
time
specified in the commitment, the related Mortgage Loan shall
immediately become
a Defaulted Mortgage Loan)), in either case such delinquency to be
determined
without giving effect to any grace period permitted by the related
Mortgage or
Mortgage Note and without regard to any acceleration of payments
under the
related Mortgage and Mortgage Note; or (ii) as to which the Master
Servicer or
Special Servicer has, by written notice to the related Mortgagor,
accelerated
the maturity of the indebtedness evidenced by the related Mortgage
Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": With respect to any Defeasance Loan, the
United
States government obligations required or permitted to be pledged
in lieu of
prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan which permits or requires the
related
Mortgagor (or permits the holder of such Mortgage Loan to require
the related
Mortgagor) to pledge Defeasance Collateral to such holder in lieu
of prepayment.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a
court of competent jurisdiction of the Mortgaged Property in an
amount less than
the then outstanding principal balance of the Mortgage Loan, which
valuation
results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificates": As defined in Section 5.03(a).
"Definitive Non-Registered Certificate": Any Definitive Certificate
that is
a Non-Registered Certificate.
"Depositor": Merrill Lynch Mortgage Investors, Inc. or its
successor in
interest.
"Depository": The Depository Trust Company, or any successor
depository
hereafter named as contemplated by Section 5.03(c). The nominee of
the initial
Depository for purposes of registering those Certificates that are
to be
Book-Entry Certificates, is Cede & Co. The Depository shall at
all times be a
"clearing corporation" as defined in Section 8-102(3) of the
Uniform Commercial
Code of the State of New York and a "clearing agency" registered
pursuant to the
provisions of Section 17A of the Securities Exchange Act of 1934,
as amended.
-26-
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the
Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date": For any Distribution Date, the fourth
Business Day
prior to the Distribution Date.
"Determination Information": As defined in Section 3.18(b).
"Directly Operate": With respect to any REO Property, the
furnishing or
rendering of services to the tenants thereof, the management of
such REO
Property, the holding of such REO Property primarily for sale or
lease or the
performance of any construction work thereon, in each case other
than through an
Independent Contractor; provided, however, that the Trustee (or the
Special
Servicer or any Sub-Servicer on behalf of the Trustee) shall not be
considered
to Directly Operate an REO Property solely because the Trustee (or
the Special
Servicer or any Sub-Servicer on behalf of the Trustee) establishes
rental terms,
chooses tenants, enters into or renews leases, deals with taxes and
insurance,
or makes decisions as to repairs or capital expenditures with
respect to such
REO Property.
"Discount Rate": With respect to any prepaid Mortgage Loan or REO
Loan for
purposes of allocating any Prepayment Premium or Yield Maintenance
Charge
received thereon or with respect thereto among the respective
Classes of the
Sequential Pay Certificates (other than any Excluded Class
thereof), an amount
equal to the discount rate stated in the Mortgage Loan documents
related to such
Mortgage Loan or REO Loan used in calculating the related
Prepayment Premium or
Yield Maintenance Charge; provided that, if a discount rate is not
stated
thereon, the "Discount Rate" will be an amount equal to the yield
(when
compounded monthly) on the U.S. Treasury issue (primary issue) with
a maturity
date closest to the maturity date or Anticipated Repayment Date, as
applicable,
for such prepaid Mortgage Loan or REO Loan. In the event there are
two or more
such U.S. Treasury issues (a) with the same coupon, the issue with
the lowest
yield shall apply, and (b) with maturity dates equally close to the
maturity
date or Anticipated Repayment Date, as applicable, for the prepaid
Mortgage Loan
or REO Loan, the issue with the earliest maturity date shall apply.
"Disqualified Non-United States Tax Person": With respect to any
Residual
Certificate, any Non-United States Tax Person or agent thereof
other than: (1) a
Non-United States Tax Person that (a) holds such Residual
Certificate and, for
purposes of Treasury regulations Section 1.860G-3(a)(3), is subject
to tax under
Section 882 of the Code, (b) certifies that it understands that,
for purposes of
Treasury regulations Section 1.860E-1(c)(4)(ii), as a holder of
such Residual
Certificate for United States federal income tax purposes, it may
incur tax
liabilities in excess of any cash flows generated by such Residual
Certificate
and intends to pay taxes associated with holding such Residual
Certificate, and
(c) has furnished the Transferor and the Trustee with an effective
IRS Form
W-8ECI or successor form and has agreed to update such form as
required under
the applicable Treasury regulations; or (2) a Non-United States Tax
Person that
has delivered to the Transferor, the Trustee and the Certificate
Registrar an
opinion of nationally recognized tax counsel to the effect that (x)
the Transfer
of such Residual Certificate to it is in accordance with the
requirements of the
Code and the regulations promulgated thereunder and (y) such
Transfer of such
Residual Certificate will not be disregarded for United States
federal income
tax purposes.
"Disqualified Organization": (i) the United States, any State or
political
subdivision thereof, a foreign government, an international
organization, or any
agency or instrumentality of any of the foregoing, (ii) any
organization (other
than certain farmers' cooperatives described in Section 521 of the
Code) that is
exempt from the tax imposed by Chapter 1 of the Code (including the
tax imposed
by
-27-
Section 511 of the Code on unrelated business taxable income),
(iii) rural
electric and telephone cooperatives described in Section 1381 of
the Code and
(iv) any other Person so designated by the Trustee or the REMIC
Administrator
based upon an Opinion of Counsel that the holding of an Ownership
Interest in a
Residual Certificate by such Person may cause the Trust or any
Person having an
Ownership Interest in any Class of Certificates (other than such
Person) to
incur a liability for any federal tax imposed under the Code that
would not
otherwise be imposed but for the Transfer of an Ownership Interest
in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in
Section 7701
of the Code or successor provisions.
"Disqualified Partnership": Any domestic entity classified as a
partnership
under the Code, if any of its beneficial owners are Disqualified
Non-United
States Tax Persons.
"Distributable Certificate Interest": With respect to any Class of
Regular
Certificates for any Distribution Date, the Accrued Certificate
Interest in
respect of such Class of Certificates for such Distribution Date,
reduced (other
than with respect to the Class X Certificates) (to not less than
zero) by the
product of (a) any Net Aggregate Prepayment Interest Shortfall for
such
Distribution Date, multiplied by (b) a fraction, expressed as a
decimal, the
numerator of which is the Accrued Certificate Interest in respect
of such Class
of Certificates for such Distribution Date, and the denominator of
which is the
aggregate Accrued Certificate Interest in respect of all the
Classes of
Sequential Pay Certificates for such Distribution Date; provided
that, if the
aggregate Class Principal Balance of the Sequential Pay
Certificates is reduced
as a result of a Realized Loss caused by a diversion of principal
collections on
the Mortgage Pool to reimburse Nonrecoverable Advances and/or pay
interest
thereon as contemplated by Section 1.02, and if there is a
subsequent recovery
of such amounts that results in the reinstatement of the Class
Principal Balance
of any one or more Classes of Sequential Pay Certificates as
provided in the
definition of "Class Principal Balance", then the amount of
Distributable
Certificate Interest with respect to each Class of Regular
Certificates for the
next succeeding Distribution Date shall be increased by the amount
of any and
all additional Distributable Certificate Interest that would have
been payable
with respect to the subject Class of Regular Certificates if such
diversion of
principal and the corresponding allocation of a Realized Loss (up
to the amount
of the reinstated balances) had not occurred.
"Distribution Account": The segregated account or accounts created
and
maintained by the Trustee pursuant to Section 3.04(b) which shall
be entitled
"LaSalle Bank National Association, as Trustee, in trust for the
registered
holders of Merrill Lynch Mortgage Trust 2005-MKB2, Commercial
Mortgage
Pass-Through Certificates, Series 2005-MKB2".
"Distribution Date": During any given month, the 12th day of such
month, or
if the 12th day is not a Business Day, the next succeeding Business
Day,
commencing in April 2005.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to
its Stated
Maturity Date, the day of the month set forth in the related
Mortgage Note on
which each Periodic Payment on such Mortgage Loan is scheduled to
be first due;
(ii) any Mortgage Loan after its Stated Maturity Date, the day of
the month set
forth in the related Mortgage Note on which each Periodic Payment
on such
Mortgage Loan had been scheduled to be first due; and (iii) any REO
Loan, the
day of the month set forth in the related Mortgage Note on which
each Periodic
Payment on the related Mortgage Loan had been scheduled to be first
due.
-28-
"Eligible Account": Any of (i) an account maintained with a federal
or
state chartered depository institution or trust company, and (a)
with respect to
deposits held for 30 days or more in such account, the long-term
deposit or
unsecured debt obligations of which are rated at least "AA-" by
S&P (or "A-"
provided the short-term unsecured debt obligations are rated at
least "A-1" by
S&P) and "Aa3" by Moody's (if then rated by Moody's) (or, with
respect to any
such Rating Agency, such lower rating as will not result in
qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as
evidenced in writing by the applicable Rating Agency), at any time
such funds
are on deposit therein, or (b) with respect to deposits held for
less than 30
days in such account, the short-term deposits of which are rated at
least "A-1"
by S&P and "P-1" by Moody's (if then rated by Moody's) (or,
with respect to any
such Rating Agency, such lower rating as will not result in an
Adverse Rating
Event) as evidenced in writing by the applicable Rating Agency at
any time such
funds are on deposit therein, (ii) an account or accounts
maintained with
KeyBank so long as KeyBank (1) has a long-term unsecured debt
rating of at least
"A-" and a short-term rating of at least "A-1" from S&P and (2)
has a long-term
unsecured debt rating of at least "A1" and a short-term rating of
at least "P-1"
from Moody's, (iii) a segregated trust account or accounts
maintained with a
federal or state chartered depository institution or trust company
acting in its
fiduciary capacity, which, in the case of a state chartered
depository
institution or trust company, is subject to regulations regarding
fiduciary
funds on deposit therein substantially similar to 12 C.F.R. ss.
9.10(b), having
in either case a combined capital and surplus of at least
$50,000,000 and
subject to supervision or examination by federal or state
authority, or (iv) any
other account the use of which would not, in and of itself, cause
an Adverse
Rating Event, as confirmed in writing by each Rating Agency.
"Environmental Assessment": A "Phase I assessment" as described in,
and
meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily
Guide or any
successor provisions covering the same subject matter in the case
of a Specially
Serviced Mortgage Loan as to which the related Mortgaged Property
is multifamily
property or (ii) the American Society for Testing and Materials in
the case of
Specially Serviced Mortgage Loan as to which the related Mortgaged
Property is
not multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or
the
Special Servicer for the account of any Mortgagor for application
toward the
payment of real estate taxes, assessments, insurance premiums,
ground rents (if
applicable) and other similar items in respect of the related
Mortgaged
Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Excess Servicing Strip": With respect to each Mortgage Loan and
REO Loan,
that portion of the Master Servicing Fee for such Mortgage Loan or
REO Loan that
represents interest accrued at the related Excess Servicing Strip
Rate.
"Excess Servicing Strip Rate": With respect to each Mortgage Loan
and REO
Loan, the excess of (x) the Master Servicing Fee Rate for such
Mortgage Loan or
REO Loan over (y) the sum of (i) 0.01% (one basis point) per annum,
(ii) the
primary servicing fee rate, if any, for such Mortgage Loan or REO
Loan and (iii)
with respect to any Broker Strip Loan, the Broker Strip Rate for
such Broker
Strip Loan; provided that the Excess Servicing Strip Rate with
respect to each
Mortgage Loan and REO Loan shall be subject to reduction by the
Trustee pursuant
to Section 3.11(a).
-29-
"Excluded Class": Any Class of Sequential Pay Certificates other
than the
Class A-1 Class A-2, Class A-3, Class A-SB, Class A-4, Class A-1A,
Class AJ,
Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates.
"Exemption": Department of Labor Prohibited Transaction Exemption
("PTE")
90-29 and 93-31, each as amended by PTE 97-34, PTE 2000-58 and PTE
2002-41, and
as each may be amended from time to time, or any successor thereto,
all as
issued by the U.S. Department of Labor.
"Exemption-Favored Party": Any of (i) MLPF&S or Banc of America
Securities,
(ii) any Person directly or indirectly, through one or more
intermediaries,
controlling, controlled by or under common control with MLPF&S
or Banc of
America Securities, and (iii) any member of any underwriting
syndicate or
selling group of which any Person described in clauses (i) or (ii)
is a manager
or co-manager with respect to a Class of Investment Grade
Certificates.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special
Servicer
with respect to any Specially Serviced Mortgage Loan, Corrected
Mortgage Loan or
REO Property (other than a Mortgage Loan or REO Property, as the
case may be,
that was purchased or replaced by any of the Mortgage Loan Sellers
pursuant to
the applicable Mortgage Loan Purchase Agreement, or that was
purchased by the
Plurality Subordinate Certificateholder or the Special Servicer or
any assignee
of the foregoing pursuant to Section 3.18, by the Master Servicer,
the Special
Servicer or the Plurality Subordinate Certificateholder pursuant to
Section
9.01) that there has been a recovery of all Insurance Proceeds,
Liquidation
Proceeds, REO Revenues and other payments or recoveries that the
Special
Servicer has determined, in accordance with the Servicing Standard,
will be
ultimately recoverable.
"Fiscal Agent": ABN AMRO Bank N.V., its successor in interest, or
any
successor fiscal agent appointed as herein provided.
"FNMA": Federal National Mortgage Association or any successor.
"Form 8-K": Form 8-K under the Exchange Act and/or any successor or
equivalent form(s) adopted by the Securities and Exchange
Commission.
"Form 8-K Current Report": A current report on Form 8-K.
"Form 10-K": Form 10-K under the Exchange Act and/or any successor
or
equivalent form(s) adopted by the Securities and Exchange
Commission.
"Form 10-K Annual Report": An annual report on Form 10-K.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan or REO
Loan, the
excess, if any, of (i) any and all Liquidation Proceeds collected
with respect
to such Mortgage Loan or the related REO Property, as the case may
be, net of
any related liquidation expenses, P&I Advances, Servicing
Advances, Principal
Recovery Fees, interest on Advances, Master Servicing Fees, Special
Servicing
Fees and Additional Trust Fund Expenses, over (ii) the Purchase
Price for such
Mortgage Loan or REO Loan, as the case may be, on the date on which
such
Liquidation Proceeds were received.
-30-
"Gain-on-Sale Reserve Account": A segregated custodial account
(which may
be a sub-account of the Distribution Account) created and
maintained by the
Trustee pursuant to Section 3.04(f) in trust for the
Certificateholders, which
shall be entitled "LaSalle Bank National Association, as Trustee,
in trust for
the registered holders of Merrill Lynch Mortgage Trust 2005-MKB2,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MKB2, Gain-on-Sale
Reserve
Account".
"Global Certificate": With respect to any Class of Book-Entry
Non-Registered Certificates, the related Rule 144A Global
Certificate.
"Grantor Trust B": That certain "grantor trust" (within the meaning
of the
Grantor Trust Provisions), the assets of which consist of the
Broker Strip with
respect to the Broker Strip Loans and amounts held from time to
time in the
Collection Account that represent the Broker Strip.
"Grantor Trust B Assets": The segregated pool of assets of Grantor
Trust B.
"Grantor Trust E": That certain "grantor trust" (within the meaning
of the
Grantor Trust Provisions), the assets of which consist of the
Excess Servicing
Strip with respect to the Mortgage Loans and any successor REO
Loans and amounts
held from time to time in the Collection Account that represent the
Excess
Servicing Strip.
"Grantor Trust E Assets": The segregated pool of assets of Grantor
Trust E.
"Grantor Trust Provisions": Subpart E of Subchapter J of the Code.
"Grantor Trust Z": That certain "grantor trust" (within the meaning
of the
Grantor Trust Provisions), the assets of which consist of any
Additional
Interest with respect to the ARD Loans and any successor REO Loans
after their
respective Anticipated Repayment Dates and amounts held from time
to time in the
Collection Account and/or the Additional Interest Account that
represent
Additional Interest.
"Grantor Trust Z Assets": The segregated pool of assets of Grantor
Trust Z.
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor
has a leasehold interest in the related Mortgaged Property or space
lease within
such Mortgaged Property, the lease agreement creating such
leasehold interest.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan
Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan
Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants,
chemicals, wastes, or substances, including, without limitation,
those so
identified pursuant to CERCLA or any other federal, state or local
environmental
related laws and regulations now existing or hereafter enacted, and
specifically
including, without limitation, asbestos and asbestos-containing
materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and
petroleum products
and urea formaldehyde.
"Holder": A Certificateholder.
-31-
"Impound Reserve": As defined in Section 3.16(c).
"Independent": When used with respect to any specified Person, any
such
Person who (i) is in fact independent of the Depositor, the
Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the Controlling
Class
Representative, the Trustee, the Fiscal Agent and any and all
Affiliates
thereof, (ii) does not have any direct financial interest in or any
material
indirect financial interest in any of the Depositor, the Mortgage
Loan Sellers,
the Master Servicer, the Special Servicer, the Controlling Class
Representative,
the Trustee, the Fiscal Agent or any Affiliate thereof, and (iii)
is not
connected with the Depositor, the Mortgage Loan Sellers, the Master
Servicer,
the Controlling Class Representative, the Special Servicer, the
Trustee, the
Fiscal Agent or any Affiliate thereof as an officer, employee,
promoter,
underwriter, trustee, partner, director or Person performing
similar functions;
provided, however, that a Person shall not fail to be Independent
of the
Depositor, any Mortgage Loan Seller, the Master Servicer, the
Controlling Class
Representative, the Special Servicer, the Trustee, the Fiscal Agent
or any
Affiliate thereof merely because such Person is the beneficial
owner of 1% or
less of any class of securities issued by the Depositor, any
Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Controlling
Class
Representative, the Trustee, the Fiscal Agent or any Affiliate
thereof, as the
case may be.
"Independent Appraiser": An Independent professional real estate
appraiser
who is a member in good standing of the Appraisal Institute, and,
if the State
in which the subject Mortgaged Property is located certifies or
licenses
appraisers, certified or licensed in such State, and in each such
case, who has
a minimum of five years experience in the subject property type and
market.
"Independent Contractor": (a) Any Person that would be an
"independent
contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of
the Code if REMIC I were a real estate investment trust (except
that the
ownership test set forth in that section shall be considered to be
met by any
Person that owns, directly or indirectly, 35 percent (35%) or more
of any Class
of Certificates, or such other interest in any Class of
Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the
Master
Servicer, the Special Servicer, the Trustee, the Fiscal Agent or
the Trust Fund,
delivered to the Trustee, provided that (i) such REMIC does not
receive or
derive any income from such Person and (ii) the relationship
between such Person
and such REMIC is at arm's length, all within the meaning of
Treasury
regulations Section 1.856-4(b)(5), or (b) any other Person upon
receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to
the Master
Servicer, the Special Servicer, the Trustee, the Fiscal Agent or
the Trust Fund,
to the effect that the taking of any action in respect of any REO
Property by
such Person, subject to any conditions therein specified, that is
otherwise
herein contemplated to be taken by an Independent Contractor will
not cause such
REO Property to cease to qualify as "foreclosure property" within
the meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of
the Code, or
cause any income realized in respect of such REO Property to fail
to qualify as
Rents from Real Property, due to such Person's failure to be
treated as an
Independent Contractor.
"Initial Purchaser": Each of MLPF&S and Banc of America
Securities.
"Institutional Accredited Investor" or "IAI": An "accredited
investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a)
under the
Securities Act or any entity in which all of the equity owners come
within such
paragraphs.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance
policy, flood insurance policy, title policy or other insurance
policy that is
maintained from time to time in respect of such Mortgage Loan or
the related
Mortgaged Property.
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"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the
extent such proceeds are not applied to the restoration of the
related Mortgaged
Property, released to the Mortgagor, or any tenants or ground
lessors, as the
case may be, pursuant to the terms of the related Mortgage or
lease, in
accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.07(d).
"Interest Accrual Period": With respect to any Distribution Date,
the
calendar month immediately preceding the calendar month in which
such
Distribution Date occurs.
"Interest Reserve Account": The segregated account (which may be a
sub-account of the Distribution Account) created and maintained by
the Trustee
pursuant to Section 3.04(c) in trust for Certificateholders, which
shall be
entitled "LaSalle Bank National Association, as Trustee, on behalf
of and in
trust for the registered holders of Merrill Lynch Mortgage Trust
2005-MKB2,
Commercial Mortgage Pass-Through Certificates, Series 2005-MKB2".
"Interest Reserve Amount": With respect to each Interest Reserve
Loan and
each Distribution Date that occurs in February of each year
subsequent to 2005
and in January of each year subsequent to 2005 that is not a leap
year, an
amount equal to one day's interest at the related Net Mortgage Rate
on the
related Stated Principal Balance as of the Due Date in the month in
which such
Distribution Date occurs (but prior to the application of any
amounts owed on
such Due Date), to the extent a Periodic Payment or P&I Advance
is made in
respect thereof for such Due Date as of the related P&I Advance
Date, in the
case of a Periodic Payment, or as of the related Distribution Date,
in the case
of a P&I Advance.
"Interest Reserve Loan": Each Mortgage Loan that is an Actual/360
Mortgage
Loan and each REO Loan that relates to an Actual/360 Mortgage Loan.
"Interested Person": The Depositor, the Mortgage Loan Seller, the
Master
Servicer, the Special Servicer, any Independent Contractor hired by
the Special
Servicer, any Holder of a Certificate or any Affiliate of any such
Person.
"Internet Website": Either the Internet website maintained by the
Trustee
(located at "www.etrustee.net" or such other address as provided to
the parties
hereto from time to time) or the Internet website maintained by the
Master
Servicer, as the case may be.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Certificate": As of any date of determination, a
Certificate that is rated in one of the four highest generic rating
categories
by at least one Rating Agency.
"Investment Period": With respect to any Distribution Date and (i)
each of
the Collection Account, any Servicing Account, any Reserve Account
and any REO
Account, the related Collection Period and (ii) each of the
Distribution
Account, the Interest Reserve Account, the Additional Interest
Account and the
Gain-on-Sale Reserve Account, the related Trustee Investment
Period.
"KeyBank": KeyBank National Association, a national association, or
its
successor in interest.
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"KeyBank Mortgage Loan Purchase Agreement": That certain mortgage
loan
purchase agreement, dated as of March 21, 2005, between the
Depositor and
KeyBank and relating to the transfer of the KeyBank Mortgage Loans
to the
Depositor.
"KeyBank Mortgage Loans": Each of the Mortgage Loans transferred
and
assigned to the Depositor pursuant to the KeyBank Mortgage Loan
Purchase
Agreement.
"KRECM": KeyCorp Real Estate Capital Markets, Inc.
"Late Collections": With respect to any Mortgage Loan, all amounts
received
thereon during any Collection Period, other than Penalty Interest,
whether as
payments, Insurance Proceeds, Liquidation Proceeds or otherwise,
which represent
late collections of the principal and/or interest portions of a
Scheduled
Payment (other than a Balloon Payment) or an Assumed Periodic
Payment in respect
of such Mortgage Loan due or deemed due on a Due Date in a previous
Collection
Period, and not previously recovered. With respect to any REO Loan,
all amounts
received in connection with the related REO Property during any
Collection
Period, other than Penalty Interest, whether as Insurance Proceeds,
Liquidation
Proceeds, REO Revenues or otherwise, which represent late
collections of the
principal and/or interest portions of a Scheduled Payment (other
than a Balloon
Payment) or an Assumed Periodic Payment in respect of the
predecessor Mortgage
Loan or of an Assumed Periodic Payment in respect of such REO Loan
due or deemed
due on a Due Date in a previous Collection Period and not
previously recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a
Final Recovery
Determination is made with respect to such Mortgage Loan; (iii)
such Mortgage
Loan is repurchased or replaced by a Mortgage Loan Seller pursuant
to the
applicable Mortgage Loan Purchase Agreement; (iv) such Mortgage
Loan is
purchased by the Plurality Subordinate Certificateholder, the
Special Servicer
or any assignee thereof pursuant to Section 3.18 or by the Master
Servicer, the
Special Servicer or the Plurality Subordinate Certificateholder
pursuant to
Section 9.01; (v) such Mortgage Loan is purchased by a mezzanine
lender pursuant
to the related mezzanine intercreditor agreement; or (vi) such
Mortgage Loan is
removed from the Trust by the Sole Certificate Owner in connection
with an
exchange of all of the outstanding Certificates owned by the Sole
Certificate
Owner for all of the Mortgage Loans and each REO Property remaining
in the Trust
Fund pursuant to Section 9.01. With respect to any REO Property
(and the related
REO Loan), any of the following events: (i) a Final Recovery
Determination is
made with respect to such REO Property; (ii) such REO Property is
purchased or
replaced by a Mortgage Loan Seller pursuant to the applicable
Mortgage Loan
Purchase Agreement; (iii) such REO Property is purchased by the
Master Servicer,
the Special Servicer or the Plurality Subordinate Certificateholder
pursuant to
Section 9.01; or (iv) such REO Property is removed from the Trust
Fund by the
Sole Certificate Owner in connection with an exchange of all of the
outstanding
Certificates owned by the Sole Certificate Owner for all of the
Mortgage Loans
and each REO Property remaining in the Trust Fund pursuant to
Section 9.01.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and
REO Revenues) received by the Master Servicer or the Special
Servicer in
connection with: (i) the taking of all or a part of a Mortgaged
Property or REO
Property by exercise of the power of eminent domain or
condemnation, subject,
however, to the rights of any tenants and ground lessors, as the
case may be,
and the rights of the Mortgagor under the terms of the related
Mortgage; (ii)
the liquidation of a Mortgaged Property or other collateral
constituting
security for a defaulted Mortgage Loan, through trustee's sale,
foreclosure
sale, REO Disposition or otherwise, exclusive of any portion
thereof required to
be released
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to the related Mortgagor in accordance with applicable law and the
terms and
conditions of the related Mortgage Note and Mortgage; (iii) the
realization upon
any deficiency judgment obtained against a Mortgagor; (iv) the
purchase of a
Defaulted Mortgage Loan by the Plurality Subordinate
Certificateholder, the
Special Servicer or any assignee thereof pursuant to Section 3.18;
(v) the
repurchase or substitution of a Mortgage Loan or REO Property by a
Mortgage Loan
Seller, pursuant to the applicable Mortgage Loan Purchase
Agreement; (vi) the
purchase of a Mortgage Loan or REO Property by the Master Servicer,
the Special
Servicer, or the Plurality Subordinate Certificateholder pursuant
to Section
9.01; (vii) the purchase of a Mortgage Loan by a mezzanine lender,
pursuant to
the related mezzanine intercreditor agreement; or (viii) the
removal of a
Mortgage Loan or REO Property from the Trust Fund by the Sole
Certificate Owner
in connection with an exchange of all of the outstanding
Certificates owned by
the Sole Certificate Owner for all of the Mortgage Loans and each
REO Property
remaining in the Trust Fund pursuant to Section 9.01.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1
Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available
Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to the Mortgage Loans and REO Loans belonging to Loan
Group 1,
taking into account adjustments in accordance with Section 1.02.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2
Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available
Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to the Mortgage Loans and REO Loans belonging to Loan
Group 2,
taking into account adjustments in accordance with Section 1.02.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of
determination, a fraction, expressed as a percentage, the numerator
of which is
the then current principal amount of such Mortgage Loan, as
adjusted in
accordance with the considerations specified in Section 3.08(a)(i),
and the
denominator of which is the Appraised Value of the related
Mortgaged Property.
"Master Servicer": KeyCorp Real Estate Capital Markets, Inc., its
successor
in interest, or any successor master servicer appointed as herein
provided.
"Master Servicing Fee": With respect to each Mortgage Loan, and any
successor REO Loan with respect thereto, the fee payable to the
Master Servicer
pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan,
the per
annum rate equal to the sum of the rates set forth under the
columns "Master
Servicing Fee Rate", "Primary Servicing Fee Rate" and "Broker Strip
Rate" on the
Mortgage Loan Schedule.
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"Merrill Mortgage Loan Purchase Agreement": That certain mortgage
loan
purchase agreement, dated as of March 21, 2005, between the
Depositor and MLMLI
and relating to the transfer of the Merrill Mortgage Loans to the
Depositor.
"Merrill Mortgage Loans": Each of the Mortgage Loans transferred
and
assigned to the Depositor pursuant to the Merrill Mortgage Loan
Purchase
Agreement.
"MERS": Mortgage Electronic Registration Systems, Inc. or any
successor
thereto.
"MERS Mortgage Loan": Any Mortgage Loan registered with MERS on the
MERS(R)
System, as to which MERS is acting as mortgagee, solely as nominee
for the
originator of such Mortgage Loan and its successors and assigns.
"MERS(R) System": The system of recording transfers of mortgages
electronically maintained by MERS.
"MIN": The Mortgage Identification Number for any MERS Mortgage
Loan.
"MLMLI": Merrill Lynch Mortgage Lending, Inc. or its successor in
interest.
"MLPF&S": Merrill Lynch, Pierce Fenner & Smith Incorporated
or its
successor in interest.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If
neither such Rating Agency nor any successor remains in existence,
"Moody's"
shall be deemed to refer to such other nationally recognized
statistical rating
agency or other comparable Person designated by the Depositor,
notice of which
designation shall be given to the Trustee, the Master Servicer and
the Special
Servicer, and specific ratings of Moody's herein referenced shall
be deemed to
refer to the equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed
of trust,
deed to secure debt or similar instrument that secures the Mortgage
Note and
creates a lien on the fee or leasehold interest in the related
Mortgaged
Property.
"Mortgage File": With respect to any Mortgage Loan, collectively,
the
following documents:
(i) the original executed Mortgage Note for such Mortgage Loan
including any power of attorney related to the execution thereof
(or a lost
note affidavit and indemnity with a copy of such Mortgage Note
attached
thereto), together with any and all intervening endorsements
thereon,
endorsed on its face or by allonge attached thereto (without
recourse,
representation or warranty, express or implied) to the order of
"LaSalle
Bank National Association, as trustee for the registered holders of
Merrill
Lynch Mortgage Trust 2005-MKB2, Commercial Mortgage Pass-Through
Certificates, Series 2005-MKB2", or in blank;
(ii) an original or a copy of the Mortgage, together with originals
or
copies of any and all intervening assignments thereof, in each case
(unless
not yet returned by the applicable recording office) with evidence
of
recording indicated thereon or certified by the applicable
recording office
or, in the case of a MERS Mortgage Loan, an original or a
-36-
copy of the Mortgage, together with any and all intervening
assignments
thereof, in each case (unless not yet returned by the applicable
recording
office) with evidence of recording indicated thereon or certified
by the
applicable recording office, with language noting the presence of
the MIN
of such Mortgage Loan and language indicating that such Mortgage
Loan is a
MERS Mortgage Loan;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof,
in each
case (unless not yet returned by the applicable recording office)
with
evidence of recording indicated thereon or certified by the
applicable
recording office or, in the case of a MERS Mortgage Loan, an
original or
copy of any related Assignment of Leases (if such item is a
document
separate from the Mortgage), together with any and all intervening
assignments thereof, in each case with evidence of recording
indicated
thereon or certified by the applicable recording office, with
language
noting the presence of the MIN of such Mortgage Loan and language
indicating that such Mortgage Loan is a MERS Mortgage Loan;
(iv) an original executed assignment, in recordable form (except
for
completion of the assignee's name (if the assignment is delivered
in blank)
and any missing recording information or a certified copy of that
assignment as sent for recording), of (A) the Mortgage, (B) any
related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (C) any other recorded document relating to the
Mortgage Loan
otherwise included in the Mortgage File, in favor of "LaSalle Bank
National
Association, as trustee for the registered holders of Merrill Lynch
Mortgage Trust 2005-MKB2, Commercial Mortgage Pass-Through
Certificates,
Series 2005-MKB2", or in blank or, in the case of a MERS Mortgage
Loan,
evidence from MERS indicating the Trustee's ownership of such
Mortgage Loan
on the MERS(R) System and the Trustee as the beneficiary of the
assignment(s) of (a) the Mortgage, (b) any related Assignment of
Leases (if
such item is a document separate from the Mortgage) and (c) any
other
recorded document relating to such Mortgage Loan otherwise included
in the
Mortgage File;
(v) an original assignment of all unrecorded documents relating to
the
subject Mortgage Loan (to the extent not already assigned pursuant
to
clause (iv) above), in favor of "LaSalle Bank National Association,
as
trustee for the registered holders of Merrill Lynch Mortgage Trust
2005-MKB2, Commercial Mortgage Pass-Through Certificates, Series
2005-MKB2", or in blank or, in the case of each MERS Mortgage Loan
(to the
extent not evidenced pursuant to clause (iv) above), evidence from
MERS
indicating the Trustee's ownership of the Mortgage Loan on the
MERS(R)
System and the Trustee as the beneficiary of the assignment(s) of
unrecorded documents related to the Mortgage Loan;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where
the terms
or provisions of the Mortgage or Mortgage Note have been
consolidated or
modified or the subject Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's
title insurance or, if such policy has not been issued or located,
an
original or copy of an irrevocable, binding commitment (which may
be a pro
forma policy or a marked version of the policy
-37-
that has been executed by an authorized representative of the title
company
or an agreement to provide the same pursuant to binding escrow
instructions
executed by an authorized representative of the title company) to
issue
such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior
UCC
Financing Statements in favor of the originator of such Mortgage
Loan or in
favor of any assignee prior to the Trustee (but only to the extent
the
Mortgage Loan Seller had possession of such UCC Financing
Statements prior
to the Closing Date) and, if there is an effective UCC Financing
Statement
in favor of the Mortgage Loan Seller on record with the applicable
public
office for UCC Financing Statements, a UCC Financing Statement
assignment,
in form suitable for filing in favor of "LaSalle Bank National
Association,
as trustee for the registered holders of Merrill Lynch Mortgage
Trust
2005-MKB2, Commercial Mortgage Pass-Through Certificates, Series
2005-MKB2", as assignee, or in blank or, in the case of a MERS
Mortgage
Loan, evidence from MERS indicating the Trustee's ownership of the
Mortgage
Loan on the MERS(R) System and the Trustee as the beneficiary of
any
effective UCC Financing Statement in favor of the related Mortgage
Loan
Seller on record with the applicable public office for UCC
Financing
Statements;
(ix) an original or copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor and any intercreditor agreement relating to mezzanine
debt
related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management
agreement, any
agreed upon procedures letter, any lockbox or cash management
agreements,
any environmental reports, or any letter of credit (which letter of
credit
shall not be delivered in original form to the Trustee but rather
to the
Master Servicer), in each case relating to such Mortgage Loan; and
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or
franchisor
comfort letter;
provided that whenever the term "Mortgage File" is used to refer to
documents
actually received by the Trustee or by a Custodian on its behalf,
such term
shall not be deemed to include such documents required to be
included therein
unless they are actually so received, and with respect to any
receipt or
certification by the Trustee or the Custodian for documents
described in clause
(vi) of this definition, shall be deemed to include only such
documents to the
extent the Trustee or Custodian has actual knowledge of their
existence.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned to the
Trust Fund pursuant to Section 2.01 and listed on the Mortgage Loan
Schedule and
from time to time held in the Trust Fund. As used herein, the term
"Mortgage
Loan" includes the related Mortgage Note, Mortgage and other
security documents
contained in the related Mortgage File or otherwise held on behalf
of the Trust.
"Mortgage Loan Purchase Agreement": Any of the Merrill Mortgage
Loan
Purchase Agreement, the Bank of America Mortgage Loan Purchase
Agreement and the
KeyBank Mortgage Loan Purchase Agreement.
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"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the
Closing Date to the Trustee as part of REMIC I, respectively,
attached hereto as
Exhibit B and in a computer readable format. Such list shall set
forth the
following information with respect to each Mortgage Loan:
(i)
the loan identification number (as specified in Annex A-1 to the
Prospectus);
(ii)
the street address (including city, county, state and zip code) and
name of the related Mortgaged Property;
(iii)
the Cut-off Date Balance;
(iv)
the amount of the Periodic Payment due on the first Due Date
following the Closing Date;
(v)
the Net Mortgage Rate as of the Cut-off Date and the original
Mortgage Rate;
(vi)
the (A) original term to stated maturity, (B) remaining term to
stated maturity and (C) Stated Maturity Date;
(vii)
the original and remaining amortization term;
(viii)
whether the Mortgage Loan is secured by a Ground Lease;
(ix)
the Master Servicing Fee Rate;
(x)
whether such Mortgage Loan is an ARD Loan and if so the Anticipated
Repayment Date and Additional Interest Rate for such ARD Loan;
(xi)
the related Mortgage Loan Seller and, if different, the related
originator;
(xii)
whether such Mortgage Loan is insured by an environmental policy;
(xiii)
whether such Mortgage Loan is cross-defaulted or
cross-collateralized with any other Mortgage Loan;
(xiv)
whether such Mortgage Loan is a Defeasance Loan;
(xv)
whether the Mortgage Loan is secured by a letter of credit;
(xvi)
whether payments on such Mortgage Loan are made to a lock-box;
(xvii)
the amount of any Reserve Funds escrowed in respect of each
Mortgage Loan;
(xviii) the number of days of any grace period permitted in respect
of any
Periodic Payment due under such Mortgage Loan;
(xix)
the property type of the related Mortgaged Property as reported in
the rent roll;
(xx)
the original principal balance of such Mortgage Loan;
(xxi)
the interest accrual basis of such Mortgage Loan;
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(xxii)
the primary servicing fee rate, if any, for such Mortgage Loan; and
(xxiii) the applicable Loan Group to which the Mortgage Loan
belongs.
"Mortgage Loan Seller": MLMLI, Bank of America or KeyBank.
"Mortgage Note": The original executed note evidencing the
indebtedness of
a Mortgagor under a Mortgage Loan, together with any rider,
addendum or
amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor
REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior
to its
Stated Maturity Date, the fixed annualized rate, not including any
Additional
Interest Rate, at which interest is scheduled (in the absence of a
default) to
accrue on such Mortgage Loan from time to time in accordance with
the related
Mortgage Note and applicable law, (ii) any Mortgage Loan after its
Stated
Maturity Date, the annualized rate described in clause (i) above
determined
without regard to the passage of such Stated Maturity Date, but
giving effect to
any modification thereof as contemplated by Section 3.20, and (iii)
any REO
Loan, the annualized rate described in clause (i) or (ii), as
applicable, above
determined as if the predecessor Mortgage Loan had remained
outstanding.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without
limitation, any Person that has not signed the related Mortgage
Note but owns an
interest in the related Mortgaged Property, which interest has been
encumbered
to secure such Mortgage Loan, and any Person that has acquired the
related
Mortgaged Property and assumed the obligations of the original
obligor under the
Mortgage Note, but excluding guarantors that do not own the related
Mortgaged
Property.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate
of all
Prepayment Interest Shortfalls incurred in connection with the
receipt of
Principal Prepayments on the Mortgage Loans during the related
Collection
Period, exceeds (b) the aggregate amount deposited by the Master
Servicer in the
Collection Account for such Distribution Date pursuant to Section
3.19(a) in
connection with such Prepayment Interest Shortfalls on the Mortgage
Loans.
"Net Investment Earnings": With respect to each of the Collection
Account,
the Interest Reserve Account, any Servicing Account, any Reserve
Account, any
REO Account, the Distribution Account, the Additional Interest
Account and the
Gain-on-Sale Reserve Account, for any Investment Period, the
amount, if any, by
which the aggregate of all interest and other income realized
during such
Investment Period on funds held in such account, exceeds the
aggregate of all
losses, if any, incurred during such Investment Period in
connection with the
investment of such funds in accordance with Section 3.06 (other
than losses of
what would have otherwise constituted interest or other income
earned on such
funds).
"Net Investment Loss": With respect to each of the Collection
Account, any
Servicing Account, any Reserve Account, any REO Account, the
Distribution
Account, the Interest Reserve Account, the Additional Interest
Account, and the
Gain-on-Sale Reserve Account, for any Investment Period, the amount
by which the
aggregate of all losses, if any, incurred during such Investment
Period
-40-
in connection with the investment of funds held in such account in
accordance
with Section 3.06 (other than losses of what would have otherwise
constituted
interest or other income earned on such funds), exceeds the
aggregate of all
interest and other income realized during such Investment Period on
such funds.
"Net Mortgage Pass-Through Rate":
(A) With respect to any Mortgage Loan (or any successor REO Loan
with
respect thereto) that accrues (or is deemed to accrue) interest on
a 30/360
Basis, for any Distribution Date, an annual rate equal to the Net
Mortgage
Rate for such Mortgage Loan as of the Closing Date (without regard
to any
modification, waiver or amendment of the terms of such Mortgage
Loan
subsequent to the Closing Date); and
(B) With respect to any Mortgage Loan (or any successor REO Loan
with
respect thereto) that accrues interest on an Actual/360 Basis, for
any
Distribution Date, an annual rate equal to twelve times a fraction,
expressed as a percentage:
(1)
the numerator of which fraction is, subject to adjustment as
described below in this definition, an amount of interest equal
to the product of (a) the number of days in the Interest Accrual
Period for such Distribution Date, multiplied by (b) the Stated
Principal Balance of such Mortgage Loan (or such REO Loan)
immediately preceding such Distribution Date, multiplied by (c)
1/360, multiplied by (d) the Net Mortgage Rate for such Mortgage
Loan as of the Closing Date (without regard to any modification,
waiver or amendment of the terms of such Mortgage Loan subsequent
to the Closing Date); and
(2)
the denominator of which fraction is the Stated Principal Balance
of such Mortgage Loan (or such REO Loan) immediately preceding
such Distribution Date.
Notwithstanding the foregoing, if the subject Distribution Date
occurs
during January, except during a leap year, or February of any year
subsequent to
2005, then the amount of interest referred to in the fractional
numerator
described in clause (B)(1) above will be decreased to reflect any
Interest
Reserve Amount with respect to the subject Mortgage Loan (or REO
Loan)
transferred from the Distribution Account to the Interest Reserve
Account in
such calendar month. Furthermore, if the subject Distribution Date
occurs during
March of any year subsequent to 2005, then the amount of interest
referred to in
the fractional numerator described in clause (B)(1) above will be
increased to
reflect any Interest Reserve Amounts with respect to the subject
Mortgage Loan
(or REO Loan) transferred from the Interest Reserve Account to the
Distribution
Account for distribution on such Distribution Date.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO
Loan, as
of any date of determination, a rate per annum equal to the related
Mortgage
Rate minus the sum of the Trustee Fee Rate and the applicable
Master Servicing
Fee Rate.
"Net Operating Income" or "NOI": With respect to any Mortgaged
Property,
for any twelve-month period, the total operating revenues derived
from such
Mortgaged Property during such period, minus the total operating
expenses
incurred in respect of such Mortgaged Property during such period,
other than
(i) non-cash items such as depreciation, (ii) amortization, (iii)
actual capital
expenditures and (iv) debt service on the related Mortgage Loan.
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"New Lease": Any lease of REO Property entered into at the
direction of the
Special Servicer, including any lease renewed, modified or extended
on behalf of
the Trustee for the benefit of the Certificateholders.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance
(including any
Workout-Delayed Reimbursement Amount that subsequently becomes a
Nonrecoverable
P&I Advance) or Nonrecoverable Servicing Advance (including any
Workout-Delayed
Reimbursement Amount that subsequently becomes a Nonrecoverable
Servicing
Advance).
"Nonrecoverable P&I Advance": Any P&I Advance previously
made or proposed
to be made, including any previously made P&I Advance that
constitutes a
Workout-Delayed Reimbursement Amount, in respect of any Mortgage
Loan or REO
Loan by the Master Servicer, the Trustee or the Fiscal Agent, as
the case may
be, that, as determined by the Master Servicer, the Special
Servicer the Trustee
or the Fiscal Agent, as applicable, in accordance with the
Servicing Standard
with respect to such P&I Advance will not be ultimately
recoverable from Late
Collections, REO Revenues, Insurance Proceeds or Liquidation
Proceeds, or any
other recovery on or with respect to such Mortgage Loan or REO
Loan; provided,
however, the Special Servicer may, at its option, make a
determination (which
shall be binding upon the Master Servicer, the Trustee and the
Fiscal Agent) in
accordance with the Servicing Standard, that any P&I Advance
previously made or
proposed to be made, or any Workout-Delayed Reimbursement Amount
previously
made, by the Master Servicer, the Trustee or the Fiscal Agent is a
Nonrecoverable P&I Advance and shall deliver notice of such
determination to the
Master Servicer, the Trustee and the Fiscal Agent. In making a
recoverability
determination, the applicable Person will be entitled to consider
(among other
things) the obligations of the Mortgagor under the terms of the
related Mortgage
Loan as it may have been modified, to consider (among other things)
the related
Mortgaged Properties in their "as is" or then current conditions
and
occupancies, as modified by such Person's assumptions (consistent
with the
Servicing Standard) regarding the possibility and effects of future
adverse
change with respect to such Mortgaged Properties, to estimate and
consider
(among other things) future expenses, to estimate and consider
(consistent with
the Servicing Standard) (among other things) the timing of
recoveries. In
addition, any such Person may update or change its recoverability
determinations
at any time and, consistent with the Servicing Standard, may obtain
from the
Special Servicer any reasonably required analysis, Appraisals or
market value
estimates or other information in the Special Servicer's possession
for such
purposes. Absent bad faith, the Master Servicer's, the Special
Servicer's, the
Trustee's or the Fiscal Agent's determination as to the
recoverability of any
P&I Advance shall be conclusive and binding on the
Certificateholders. The
Trustee and the Fiscal Agent shall be entitled to conclusively rely
on any
recoverability determination made by the Master Servicer and the
Master
Servicer, the Trustee and the Fiscal Agent shall be entitled to
conclusively
rely on any recoverability determination made by the Special
Servicer and shall
be required to act in accordance with such determination.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously made
or proposed to be made, including any previously made Servicing
Advance that
constitutes a Workout-Delayed Reimbursement Amount, in respect of a
Mortgage
Loan or REO Loan by the Master Servicer, the Special Servicer, the
Trustee or
the Fiscal Agent, as the case may be, that, as determined by the
Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as
applicable,
in accordance with the Servicing Standard, will not be ultimately
recoverable
from Late Collections, REO Revenues, Insurance Proceeds,
Liquidation Proceeds,
or any other recovery on or in respect of such Mortgage Loan or the
related REO
Property; provided, however, the Special Servicer may, at its
option, make a
determination (which shall be binding upon the Master Servicer, the
Trustee and
the Fiscal Agent) in accordance with the Servicing Standard, that
any Servicing
Advance previously made or proposed to be
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made, or any Workout-Delayed Reimbursement Amount previously made,
by the Master
Servicer, the Trustee or the Fiscal Agent is a Nonrecoverable
Servicing Advance
and shall deliver notice of such determination to the Master
Servicer, the
Trustee and the Fiscal Agent. In making such recoverability
determination, such
Person will be entitled to consider (among other things) only the
obligations of
the Mortgagor under the terms of the related Mortgage Loan as it
may have been
modified, to consider (among other things) the related Mortgaged
Properties in
their "as is" or then current conditions and occupancies, as
modified by such
party's assumptions (consistent with the Servicing Standard)
regarding the
possibility and effects of future adverse change with respect to
such Mortgaged
Properties, to estimate and consider (among other things) future
expenses, to
estimate and consider (consistent with the Servicing Standard)
(among other
things) the timing of recoveries. In addition, any such Person may
update or
change its recoverability determinations at any time and,
consistent with the
Servicing Standard, may obtain from the Special Servicer any
reasonably required
analysis, Appraisals or market value estimates or other information
in the
Special Servicer's possession for such purposes. Absent bad faith,
the Master
Servicer's, the Special Servicer's, the Trustee's or the Fiscal
Agent's
determination as to the recoverability of any Servicing Advance
shall be
conclusive and binding on the Certificateholders. The Trustee and
the Fiscal
Agent shall be entitled to conclusively rely on any recoverability
determination
made by the Master Servicer and the Master Servicer, the Trustee
and the Fiscal
Agent shall be entitled to conclusively rely on any recoverability
determination
made by the Special Servicer and shall be required to act in
accordance with
such determination.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class XC, Class E, Class F, Class G, Class H,
Class J, Class
K, Class L, Class M, Class N, Class P, Class Q, Class Z, Class R-I
or Class R-II
Certificate.
"Non-United States Tax Person": Any Person other than a United
States Tax
Person.
"Officer's Certificate": A certificate signed by a Servicing
Officer of the
Master Servicer or the Special Servicer, as the case may be, or by
a Responsible
Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel (which counsel
may be a
salaried counsel for the Depositor, the Master Servicer or the
Special Servicer)
acceptable to and delivered to the Trustee or the Master Servicer,
as the case
may be, except that any opinion of counsel relating to (a) the
qualification of
REMIC I or REMIC II as a REMIC; (b) the qualification of any of
Grantor Trust Z,
Grantor Trust E or Grantor Trust B as a grantor trust; (c)
compliance with REMIC
Provisions; or (d) the resignation of the Master Servicer or
Special Servicer
pursuant to Section 6.04 must be an opinion of counsel who is in
fact
Independent of the Master Servicer, the Special Servicer or the
Depositor, as
applicable.
"Option Holder": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"Original Class Principal Balance": With respect to any Class of
Regular
Certificates (other than the Class X Certificates), the initial
Class Principal
Balance thereof as of the Closing Date, in each case as specified
in the
Preliminary Statement.
"Original Class XC Notional Amount": $1,137,261,494.
"Original Class XP Notional Amount": $1,105,841,000.
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"Original Notional Amount": The Original Class XC Notional Amount
or the
Original Class XP Notional Amount, as applicable.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security
interest in such Certificate as the Holder thereof and any other
interest
therein, whether direct or indirect, legal or beneficial, as owner
or as
pledgee.
"Pass-Through Rate": With respect to:
(i)
the Class A-1 Certificates for any Distribution Date, 4.4460% per
annum;
(ii)
the Class A-2 Certificates for any Distribution Date, 4.8060% per
annum;
(iii)
the Class A-3 Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.0210% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(iv)
the Class A-SB Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.0700% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(v)
the Class A-4 Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.2040% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(vi)
the Class A-1A Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.1440% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(vii)
the Class AJ Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.2630% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(viii)
the Class B Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.3180% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(ix)
the Class C Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.3480% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(x)
the Class D Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.4460% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(xi)
the Class E Certificates for any Distribution Date, a per annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
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(xii)
the Class F Certificates for any Distribution Date, a per annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(xiii)
the Class G Certificates for any Distribution Date, a per annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(xiv)
the Class H Certificates for any Distribution Date, a per annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(xv)
the Class J Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.0190% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(xvi)
the Class K Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.0190% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(xvii)
the Class L Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.0190% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(xviii) the Class M Certificates for any Distribution Date, a per
annum
rate equal to the lesser of (a) 5.0190% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(xix)
the Class N Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.0190% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(xx)
the Class P Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.0190% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(xxi)
the Class Q Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.0190% and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date;
(xxii)
the Class XC Certificates, for any Distribution Date, a rate equal
to the weighted average of the Class XC Strip Rates for the Class
XC Components for such Distribution Date (weighted on the basis of
the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date); and
(xxiii) the Class XP Certificates for any Distribution Date, a rate
equal
to the weighted average of the Class XP Strip Rates for the
respective Class XP Components for such Distribution Date (weighted
on the basis of the respective Component Notional Amounts of such
Components outstanding immediately prior to such Distribution
Date).
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"P&I Advance": As to any Mortgage Loan or REO Loan, any advance
made by the
Master Servicer, the Trustee or the Fiscal Agent pursuant to
Section 4.03.
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Penalty Interest": With respect to any Mortgage Loan (or any
successor REO
Loan with respect thereto), any amounts collected thereon, other
than late
payment charges, Additional Interest, Prepayment Premiums or Yield
Maintenance
Charges, that represent penalty interest (arising out of a default)
in excess of
interest on such Mortgage Loan (or such successor REO Loan) accrued
at the
related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate, the
portion
of the relevant Class evidenced by such Certificate, expressed as a
percentage,
the numerator of which is the Certificate Principal Balance or
Certificate
Notional Amount, as the case may be, of such Certificate as of the
Closing Date,
as specified on the face thereof, and the denominator of which is
the Original
Class Principal Balance or Original Notional Amount, as the case
may be, of the
relevant Class. With respect to a Residual Certificate or Class Z
Certificate,
the percentage interest in distributions to be made with respect to
the relevant
Class, as stated on the face of such Certificate.
"Performance Certification": As defined in Section 8.16(b).
"Performing Party": As defined in Section 8.16(b).
"Periodic Payment": With respect to any Mortgage Loan as of any Due
Date,
the scheduled payment of principal and/or interest on such Mortgage
Loan
(exclusive of Additional Interest), including any Balloon Payment,
that is
actually payable by the related Mortgagor from time to time under
the terms of
the related Mortgage Note (as such terms may be changed or modified
in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or by reason of a modification, waiver or amendment
granted or agreed
to by the Special Servicer pursuant to Section 3.20).
"Permitted Investments": Any one or more of the following
obligations or
securities (including obligations or securities of the Trustee or
one of its
Affiliates if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or
any
agency or instrumentality thereof (having original maturities of
not more
than 365 days), provided such obligations are backed by the full
faith and
credit of the United States. Such obligations must be limited to
those
instruments that have a predetermined fixed dollar amount of
principal due
at maturity that cannot vary or change. Interest may either be
fixed or
variable. If such interest is variable, interest must be tied to a
single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index. In addition, such obligations may
not have
a rating from S&P with an "r" highlighter;
(ii) repurchase agreements or obligations with respect to any
security
described in clause (i) above (having original maturities of not
more than
365 days), provided that the short-term deposit or debt
obligations, of the
party agreeing to repurchase such obligations are rated in the
highest
rating categories of each of S&P and Moody's or such lower
rating as will
not result in qualification, downgrading or withdrawal of the
ratings then
assigned to the Certificates as evidenced in writing by the Rating
Agencies. In addition, it may not have a rating from S&P
-46-
with an "r" highlighter and its terms must have a predetermined
fixed
dollar amount of principal due at maturity that cannot vary or
change.
Interest may either be fixed or variable. If such interest is
variable,
interest must be tied to a single interest rate index plus a single
fixed
spread (if any), and move proportionately with that index;
(iii) federal funds, unsecured uncertified certificates of deposit,
time deposits, demand deposits and bankers' acceptances of any bank
or
trust company organized under the laws of the United States or any
state
thereof (having original maturities of not more than 365 days), the
short
term obligations of which are rated in the highest rating
categories of
each of S&P and Moody's or such lower rating as will not result
in
qualification, downgrading or withdrawal of the ratings then
assigned to
the Certificates as evidenced in writing by the Rating Agencies. In
addition, it may not have a rating from S&P with an "r"
highlighter and its
terms should have a predetermined fixed dollar amount of principal
due at
maturity that cannot vary or change. Interest may either be fixed
or
variable. If such interest is variable, interest must be tied to a
single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index;
(iv) commercial paper (including both non-interest bearing discount
obligations and interest-bearing obligations and having original
maturities
of not more than 365 days) of any corporation or other entity
organized
under the laws of the United States or any state thereof which is
rated in
the highest rating category of each of S&P and Moody's (or such
lower
rating as will not result in qualification, downgrading or
withdrawal of
the ratings then assigned to the Certificates as evidenced in
writing by
the Rating Agencies). The commercial paper by its terms must have a
predetermined fixed dollar amount of principal due at maturity that
cannot
vary or change. In addition, it may not have a rating from S&P
with an "r"
highlighter. Interest may either be fixed or variable. If such
interest is
variable, interest must be tied to a single interest rate index
plus a
single fixed spread (if any), and move proportionately with that
index;
(v) money market funds which are rated in the highest applicable
rating category of each of S&P and Moody's (or such lower
rating as will
not result in qualification, downgrading or withdrawal of the
ratings then
assigned to the Certificates, as evidenced in writing by the Rating
Agencies). In addition, it may not have a rating from S&P with
an "r"
highlighter and its terms must have a predetermined fixed dollar
amount of
principal due at maturity that cannot vary or change; and
(vi) any other obligation or security acceptable to each Rating
Agency, evidence of which acceptability shall be provided in
writing by
each Rating Agency to the Master Servicer, the Special Servicer and
the
Trustee;
provided that (1) no investment described hereunder shall evidence
either the
right to receive (x) only interest with respect to such investment
or (y) a
yield to maturity greater than 120% of the yield to maturity at par
of the
underlying obligations; and (2) no investment described hereunder
may be
purchased at a price greater than par if such investment may be
prepaid or
called at a price less than its purchase price prior to stated
maturity.
"Permitted Transferee": Any Transferee that is not (i) a
Disqualified
Organization, (ii) any Person as to whom the transfer of any
Residual
Certificate may cause either REMIC I or REMIC II to fail to qualify
as a REMIC,
(iii) a Disqualified Non-United States Tax Person, (iv) a
Disqualified
Partnership or (v) a foreign permanent establishment or fixed base
(within the
meaning of any applicable income tax treaty between the United
States and any
foreign jurisdiction) of a United States Tax Person.
-47-
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of
REMIC I
or REMIC II, the Holder of Certificates holding the largest
Percentage Interest
of the related Class of Residual Certificates.
"Plurality Subordinate Certificateholder": As of any date of
determination,
any single Holder of Certificates (or, if the Controlling Class
consists of
Book-Entry Certificates, Certificate Owner) (other than any Holder
(or
Certificate Owner, as the case may be) which is, or is an Affiliate
of, the
Depositor or a Mortgage Loan Seller) with the largest percentage of
Voting
Rights allocated to such Class. With respect to determining the
Plurality
Subordinate Certificateholder, the Class A Senior Certificates
collectively
shall be deemed to be a single Class of Certificates, with such
Voting Rights
allocated among the Holders of Certificates (or Certificate Owners)
of such
Classes of Class A Senior Certificates in proportion to the
respective
Certificate Principal Balances of such Certificates as of such date
of
determination.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on
the
Certificates for federal income tax purposes, (i) each ARD Loan is
repaid on its
Anticipated Repayment Date, (ii) no Mortgage Loan will otherwise be
paid prior
to maturity and (iii) there will be no extension of maturity for
any Mortgage
Loan.
"Prepayment Interest Excess": With respect to any Mortgage Loan
that was
subject to a voluntary Principal Prepayment in full or in part
during any
Collection Period, which Principal Prepayment was applied to such
Mortgage Loan
following such Mortgage Loan's Due Date in such Collection Period,
the amount of
interest (net of related Master Servicing Fees and, if applicable,
any
Additional Interest and Penalty Interest) accrued on the amount of
such
Principal Prepayment during the period from and after such Due Date
and ending
on the date such Principal Prepayment was applied to such Mortgage
Loan, to the
extent collected (without regard to any related Prepayment Premium
or Yield
Maintenance Charge actually collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was
subject to a voluntary Principal Prepayment in full or in part
during any
Collection Period, which Principal Prepayment was applied to such
Mortgage Loan
prior to such Mortgage Loan's Due Date in such Collection Period,
the amount of
interest, to the extent not collected from the related Mortgagor
(without regard
to any Prepayment Premium or Yield Maintenance Charge actually
collected), that
would have accrued (at a rate per annum equal to the sum of (x) the
related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate),
on the
amount of such Principal Prepayment during the period commencing on
the date as
of which such Principal Prepayment was applied to such Mortgage
Loan and ending
on the day immediately preceding such Due Date, inclusive (net of
any Penalty
Interest and Additional Interest, if applicable).
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield
Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in
connection with a Principal Prepayment.
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"Primary Collateral": The Mortgaged Property directly securing a
Crossed
Loan and excluding any property as to which the related lien may
only be
foreclosed upon by exercise of cross-collateralization provisions.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of
The Wall Street Journal, as such "prime rate" may change from time
to time. If
The Wall Street Journal ceases to publish the "prime rate", then
the Master
Servicer shall select an equivalent publication that publishes such
"prime
rate"; and if such "prime rate" is no longer generally published or
is limited,
regulated or administered by a governmental or quasi-governmental
body, then the
Master Servicer shall select a comparable interest rate index. In
either case,
such selection shall be made by the Master Servicer in its sole
discretion and
the Master Servicer shall notify the Trustee and the Special
Servicer in writing
of its selection.
"Principal Distribution Amount": With respect to any Distribution
Date, the
aggregate of the following (without duplication):
(a) the aggregate of the principal portions of all Periodic
Payments
(other than Balloon Payments) and any Assumed Periodic Payments due
or
deemed due in respect of the Mortgage Loans for their respective
Due Dates
occurring during the related Collection Period, to the extent paid
by the
related Mortgagor during or prior to, or otherwise received during,
the
related Collection Period or advanced with respect to such
Distribution
Date;
(b) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
(c) with respect to any Mortgage Loan as to which the related
Stated
Maturity Date occurred during or prior to the related Collection
Period,
any payment of principal (other than a Principal Prepayment) made
by or on
behalf of the related Mortgagor during the related Collection
Period
(including any Balloon Payment), net of any portion of such payment
that
represents a recovery of the principal portion of any Periodic
Payment
(other than a Balloon Payment) due, or the principal portion of any
Assumed
Periodic Payment deemed due, in respect of such Mortgage Loan on a
Due Date
during or prior to the related Collection Period and included as
part of
the Principal Distribution Amount for such Distribution Date or any
prior
Distribution Date pursuant to clause (a) above;
(d) the aggregate of the principal portion of all Liquidation
Proceeds, Insurance Proceeds and, to the extent not otherwise
included in
clause (a), (b) or (c) above, payments and revenues that were
received on
the Mortgage Loans during the related Collection Period and that
were
identified and applied by the Master Servicer and/or Special
Servicer as
recoveries of principal of the Mortgage Loans, in each case net of
any
portion of such amounts that represents a recovery of the principal
portion
of any Periodic Payment (other than a Balloon Payment) due, or of
the
principal portion of any Assumed Periodic Payment deemed due, in
respect of
the related Mortgage Loan on a Due Date during or prior to the
related
Collection Period and included as part of the Principal
Distribution Amount
for such Distribution Date or any prior Distribution Date pursuant
to
clause (a) above;
(e) with respect to any REO Properties, the aggregate of the
principal
portions of all Assumed Periodic Payments deemed due in respect of
the
related REO Loans for their respective Due Dates occurring during
the
related Collection Period to the extent received (in the form of
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REO Revenues or otherwise) during the related Collection Period or
advanced
with respect to such Distribution Date;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period on such REO
Properties and
that were identified and applied by the Master Servicer and/or
Special
Servicer as recoveries of principal of the related REO Loans, in
each case
net of any portion of such amounts that represents a recovery of
the
principal portion of any Periodic Payment (other than a Balloon
Payment)
due, or of the principal portion of any Assumed Periodic Payment
deemed
due, in respect of the related REO Loan or the predecessor Mortgage
Loan on
a Due Date during or prior to the related Collection Period and
included as
part of the Principal Distribution Amount for such Distribution
Date or any
prior Distribution Date pursuant to clause (a) or (e) above; and
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal
Distribution Amount
for the immediately preceding Distribution Date, over the aggregate
distributions of principal made on the Sequential Pay Certificates
on such
immediately preceding Distribution Date pursuant to Section 4.01;
provided that if any Nonrecoverable Advance or Workout-Delayed
Reimbursement
Amount is reimbursed, or interest on any Nonrecoverable Advance is
paid, from
collections on the Mortgage Pool received during the related
Collection Period
that are allocable as principal, as provided in Section 1.02(a),
then the
Principal Distribution Amount for the subject Distribution Date
shall be reduced
(to not less than zero) as and to the extent provided in Section
1.02(b); and
provided, further, that if any Recovered Amounts are received
during the related
Collection Period, then the Principal Distribution Amount for the
subject
Distribution Date shall be increased as and to the extent provided
in Section
1.02(c).
Any allocation of the Principal Distribution Amount between Loan
Group 1
and Loan Group 2 for purposes of calculating the Loan Group 1
Principal
Distribution Amount and the Loan Group 2 Distribution Amount shall
take into
account Section 1.02.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due
Date; and
provided that it shall not include a payment of principal that is
accompanied by
an amount of interest representing scheduled interest due on any
date or dates
in any month or months subsequent to the month of prepayment.
"Principal Recovery Fee": With respect to each Specially Serviced
Mortgage
Loan and REO Loan, the fee payable to the Special Servicer out of
certain
related recoveries pursuant to the third paragraph of Section
3.11(c).
"Principal Recovery Fee Rate": With respect to all amounts set
forth in the
third paragraph of Section 3.11(c), 1.0%.
"Privileged Person": Any Certificateholder, any Certificate Owner,
any
prospective transferee of a Certificate or interest therein, any
Rating Agency,
any Mortgage Loan Seller, any Underwriter or any party hereto;
provided that no
Certificate Owner or prospective transferee of a Certificate or an
interest
therein shall be considered a "Privileged Person" or be entitled to
a password
or restricted access as contemplated by Section 3.15 unless such
Person has
delivered to the Trustee or the Master Servicer, as applicable, a
certification
in the form of Exhibit I-1 or Exhibit I-2, as applicable.
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"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated March 9, 2005, as supplemented
by the
Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The final prospectus supplement dated
March 21,
2005 of the Depositor relating to the registration of the
Registered
Certificates under the Securities Act.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Notice": As defined in Section 3.18(e).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan),
a cash
price equal to the outstanding principal balance of such Mortgage
Loan (or REO
Loan) as of the date of purchase, together with (a) all accrued and
unpaid
interest on such Mortgage Loan (or REO Loan) at the related
Mortgage Rate (other
than Additional Interest) to but not including the Due Date in the
Collection
Period of purchase, (b) any accrued interest on P&I Advances
(other than
Unliquidated Advances in respect of prior P&I Advances) made
with respect to
such Mortgage Loan (or REO Loan), (c) all related and unreimbursed
(from
collections on such Mortgage Loan (or REO Loan) Servicing Advances
(together
with Unliquidated Advances) plus any accrued and unpaid interest
thereon (other
than on Unliquidated Advances), (d) any reasonable costs and
expenses,
including, but not limited to, the cost of any enforcement action,
incurred by
the Master Servicer, the Special Servicer or the Trust Fund in
connection with
any such purchase by a Mortgage Loan Seller (to the extent not
included in
clause (c) above) and Principal Recovery Fees payable with respect
to such
Mortgage Loan (or REO Loan), and (e) any other Additional Trust
Fund Expenses in
respect of such Mortgage Loan (or REO Loan) (including any
Additional Trust Fund
Expenses (which includes Special Servicing Fees and Workout Fees)
previously
reimbursed or paid by the Trust Fund but not so reimbursed by the
related
Mortgagor or from related Insurance Proceeds or Liquidation
Proceeds); provided
that the Purchase Price shall not be reduced by any outstanding
P&I Advance.
"Qualified Institutional Buyer" or "QIB": A "qualified
institutional buyer"
within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company
qualified to write the related Insurance Policy in the relevant
jurisdiction (i)
with a minimum claims-paying ability rating of at least "A" by
S&P and "A3" by
Moody's (or the obligations of which are guaranteed or backed by a
company
having such a claims paying ability) and (ii) with respect to the
fidelity bond
and errors and omissions Insurance Policy required to be maintained
pursuant to
Section 3.07(c), an insurance company that has a claims paying
ability rated no
lower than two rating categories (without regard to pluses or
minuses or
numerical qualifications) below the rating assigned to the then
highest rated
outstanding Certificate, but in no event lower than "A-" by S&P
and "A3" by
Moody's (or the obligations of which are guaranteed or backed by a
company
having such a claims paying ability) or, in the case of clauses (i)
and (ii),
such other rating as each Rating Agency shall have confirmed in
writing will not
result in an Adverse Rating Event.
"Qualified Substitute Mortgage Loan": A mortgage loan which must,
on the
date of substitution: (i) have an outstanding principal balance,
after
application of all scheduled payments of principal and interest due
during or
prior to the month of substitution, not in excess of the Stated
Principal
Balance of the deleted Mortgage Loan as of the Due Date in the
calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not
less than
the Mortgage Rate of the deleted
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Mortgage Loan; (iii) have the same Due Date as and a grace period
no longer than
the deleted Mortgage Loan; (iv) accrue interest on the same basis
as the deleted
Mortgage Loan (for example, on the basis of a 360-day year
consisting of twelve
30-day months); (v) have a remaining term to stated maturity not
greater than,
and not more than two years less than, the remaining term to stated
maturity of
the deleted Mortgage Loan; (vi) have a then current Loan-to-Value
Ratio not
higher than that of the deleted Mortgage Loan and a current
Loan-to-Value Ratio
not higher than the then current Loan-to-Value Ratio of the deleted
Mortgage
Loan; (vii) comply as of the date of substitution with all of the
representations and warranties set forth in the applicable Mortgage
Loan
Purchase Agreement; (viii) have an Environmental Assessment that
indicates no
adverse environmental conditions and an engineering report that
indicates no
adverse physical condition with respect to the related Mortgaged
Property and
which will be delivered as a part of the related Mortgage File;
(ix) have a
current Debt Service Coverage Ratio of not less than the greater of
the original
Debt Service Coverage Ratio of the deleted Mortgage Loan and the
current Debt
Service Coverage Ratio of the deleted Mortgage Loan; (x) be
determined by an
Opinion of Counsel (at the applicable Mortgage Loan Seller's
expense) to be a
"qualified replacement mortgage" within the meaning of Section
860G(a)(4) of the
Code; (xi) not have a maturity date after the date two years prior
to the Rated
Final Distribution Date; (xii) not be substituted for a deleted
Mortgage Loan
unless the Trustee has received prior confirmation in writing by
each Rating
Agency that such substitution will not result in an Adverse Rating
Event (the
cost, if any, of obtaining such confirmation to be paid by the
applicable
Mortgage Loan Seller); (xiii) have a date of origination that is
not more than
12 months prior to the date of substitution; (xiv) have been
approved by the
Controlling Class Representative (or, if there is no Controlling
Class
Representative then serving, by the Holders of Certificates
representing a
majority of the Voting Rights allocated to the Controlling Class),
which
approval may not be unreasonably withheld or delayed; (xv) not be
substituted
for a deleted Mortgage Loan if it would result in the termination
of the REMIC
status of any of the REMICs established under this Agreement or the
imposition
of tax on any of such REMICs other than a tax on income expressly
permitted or
contemplated to be received by the terms of this Agreement, as
determined by an
Opinion of Counsel (at the applicable Mortgage Loan Seller's
expense); (xvi)
have comparable prepayment restrictions; and (xvii) become a part
of the same
Loan Group as the deleted Mortgage Loan. In the event that one or
more mortgage
loans are substituted for one or more deleted Mortgage Loans, then
the amounts
described in clause (i) shall be determined on the basis of
aggregate principal
balances and the rates described in clause (ii) above (provided
that the lowest
Net Mortgage Rate shall not be lower than the highest fixed
Pass-Through Rate of
any Class of Sequential Pay Certificates outstanding) and the
remaining term to
stated maturity referred to in clause (v) above shall be determined
on a
weighted average basis. When a Qualified Substitute Mortgage Loan
is substituted
for a deleted Mortgage Loan, the applicable Mortgage Loan Seller
shall certify
that the proposed Qualified Substitute Mortgage Loan meets all of
the
requirements of the above definition and shall send such
certification to the
Trustee.
"Rated Final Distribution Date": The Distribution Date in September
2042.
"Rating Agency": Each of S&P and Moody's.
"Realized Loss": With respect to: (1) each Specially Serviced
Mortgage Loan
or Corrected Mortgage Loan as to which a Final Recovery
Determination has been
made, or with respect to any successor REO Loan as to which a Final
Recovery
Determination has been made as to the related REO Property, an
amount (not less
than zero) equal to (a) the unpaid principal balance of such
Mortgage Loan or
REO Loan, as the case may be, as of the commencement of the
Collection Period in
which the Final Recovery Determination was made, plus (b) without
taking into
account the amount described in subclause (1)(d) of this
definition, all accrued
but unpaid interest on such Mortgage Loan or such REO Loan, as the
case may be,
at the related Mortgage Rate to but not including the Due Date in
the
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Collection Period in which the Final Recovery Determination was
made (exclusive
of any portion thereof that constitutes Penalty Interest,
Additional Interest,
Prepayment Premiums or Yield Maintenance Charges), plus (c) any
related unpaid
servicing expenses, any related Servicing Advances (together with
Unliquidated
Advances in respect of prior related Servicing Advances) that, as
of the
commencement of the Collection Period in which the Final Recovery
Determination
was made, had not been reimbursed from the subject Mortgage Loan or
REO
Property, as the case may be, and any new related Servicing
Advances made during
such Collection Period, minus (d) all payments and proceeds, if
any, received in
respect of and allocable to such Mortgage Loan or such REO Loan, as
the case may
be, during the Collection Period in which such Final Recovery
Determination was
made net of any portion of such payments and/or proceeds that is
payable or
reimbursable in respect of the related liquidation and other
servicing expenses;
(2) each defaulted Mortgage Loan as to which any portion of the
principal or
previously accrued interest (other than Additional Interest and
Penalty
Interest) payable thereunder or any Unliquidated Advance was
canceled in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or a modification, waiver or amendment of such Mortgage
Loan granted
or agreed to by the Special Servicer pursuant to Section 3.20, the
amount of
such principal and/or interest or Unliquidated Advance so canceled;
(3) each
Mortgage Loan as to which the Mortgage Rate thereon has been
permanently reduced
and not recaptured for any period in connection with a bankruptcy
or similar
proceeding involving the related Mortgagor or a modification,
waiver or
amendment of such Mortgage Loan granted or agreed to by the Special
Servicer
pursuant to Section 3.20, the amount of the consequent reduction in
the interest
portion of each successive Periodic Payment due thereon (each such
Realized Loss
shall be deemed to have been incurred on the Due Date for each
affected Periodic
Payment); (4) each Mortgage Loan as to which there were any
Nonrecoverable
Advances, the amount of any such Nonrecoverable Advance reimbursed
(and/or
interest thereon paid) from amounts that would have otherwise been
distributable
as principal on the Certificates; and (5) each Mortgage Loan
purchased from the
Trust Fund at a price less than the Purchase Price therefor, the
amount of the
deficiency.
"Record Date": With respect to any Distribution Date, the last
Business Day
of the month immediately preceding the month in which such
Distribution Date
occurs.
"Recording/Filing Agent": As defined in Section 2.01(d).
"Recovered Amount": As defined in Section 1.02(c).
"Registered Certificate": Any Class A-1, Class A-2, Class A-3,
Class A-SB,
Class A-4, Class A-1A, Class AJ, Class B, Class C, Class D or Class
XP
Certificate.
"Regular Certificate": Any REMIC II Certificate other than a Class
R-II
Certificate.
"Reimbursement Rate": The rate per annum applicable to the accrual
of
interest on Servicing Advances in accordance with Section 3.03(d)
and on P&I
Advances in accordance with Section 4.03(d), which rate per annum
is equal to
the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section
860D of the Code (or any successor thereto).
"REMIC Administrator": The Trustee or any REMIC administrator
appointed
pursuant to Section 8.14.
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"REMIC I": The segregated pool of assets subject hereto,
constituting the
primary trust created hereby and to be administered hereunder with
respect to
which a separate REMIC election is to be made and, consisting of:
(i) all of the
Mortgage Loans as from time to time are subject to this Agreement
and all
payments under and proceeds of such Mortgage Loans received after
the Closing
Date (excluding the Excess Servicing Strip, the Broker Strip and
all Additional
Interest), together with all documents included in the related
Mortgage Files
and any related Escrow Payments and Reserve Funds; (ii) all amounts
(inclusive
of the Closing Date Deposit but exclusive of the Excess Servicing
Strip, the
Broker Strip and all Additional Interest) held from time to time in
the
Collection Account, the Interest Reserve Account, any REO Account,
the
Gain-on-Sale Reserve Account and the Distribution Account; (iii)
any REO
Property acquired in respect of a Mortgage Loan; (iv) the rights of
the
Depositor under Sections 2, 3, 8, 9, 10, 11, 12, 13, 14, 16, 17, 19
and 20 of
each of the Mortgage Loan Purchase Agreements with respect to the
Mortgage
Loans; and (v) the rights of the mortgagee under all Insurance
Policies with
respect to the Mortgage Loans.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular
Interest outstanding as of any date of determination. As of the
Closing Date,
the initial REMIC I Principal Balance of each REMIC I Regular
Interest shall be
the amount set forth as such in the Preliminary Statement hereto.
On each
Distribution Date, the REMIC I Principal Balance of each REMIC I
Regular
Interest shall be reduced by all distributions of principal deemed
to have been
made in respect of such REMIC I Regular Interest on such
Distribution Date
pursuant to Section 4.01(h), and shall be further reduced on such
Distribution
Date by all Realized Losses and Additional Trust Fund Expenses
deemed to have
been allocated thereto on such Distribution Date pursuant to
Section 4.04(b).
The REMIC I Principal Balance of a REMIC I Regular Interest shall
be increased,
pursuant to the third paragraph of Section 4.04(a), in connection
with increases
in the Class Principal Balance of the Corresponding Certificates as
contemplated
by the second paragraph of Section 4.04(a).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial
ownership interests in REMIC I issued hereunder and designated as a
"regular
interest" in REMIC I, as described in the Preliminary Statement
hereto.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I
Regular Interests and all amounts held from time to time, to the
extent related
to REMIC II, in the Distribution Account conveyed in trust to the
Trustee for
the benefit of REMIC II, as holder of the REMIC I Regular
Interests, and the
Holders of the Class R-II Certificates pursuant to Section 2.07,
with respect to
which a separate REMIC election is to be made.
"REMIC II Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-SB,
Class A-4, Class A-1A, Class AJ, Class B, Class C, Class D, Class
XP, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class P,
Class Q, Class XC or Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to
real estate mortgage investment conduits, which appear at Sections
860A through
860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and
proposed, temporary and final Treasury regulations and any
published rulings,
notices and announcements promulgated thereunder, as the foregoing
may be in
effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income
of the character described in Section 856(d) of the Code.
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"REO Account": A segregated account or accounts created and
maintained by
the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust
for the Certificateholders, which shall be entitled "Clarion
Partners, LLC, as
Special Servicer, for LaSalle Bank National Association, as Trustee
in trust for
the registered holders of Merrill Lynch Mortgage Trust 2005-MKB2,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MKB2, REO Account".
"REO Acquisition": The acquisition of any REO Property pursuant to
Section
3.09.
"REO Disposition": The sale or other disposition of any REO
Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding
with respect to each REO Property. Each REO Loan shall be deemed to
be
outstanding for so long as the related REO Property (or an interest
therein)
remains part of REMIC I and shall be deemed to provide for periodic
payments of
principal and/or interest equal to its Assumed Periodic Payment and
otherwise to
have the same terms and conditions as its predecessor Mortgage Loan
(such terms
and conditions to be applied without regard to the default on such
predecessor
Mortgage Loan and the acquisition of the related REO Property as
part of the
Trust Fund). Each REO Loan shall be deemed to have an initial
unpaid principal
balance and Stated Principal Balance equal to the unpaid principal
balance and
Stated Principal Balance, respectively, of its predecessor Mortgage
Loan as of
the date of the related REO Acquisition. All Periodic Payments
(other than a
Balloon Payment), Assumed Periodic Payments (in the case of a
Balloon Loan
delinquent in respect of its Balloon Payment) and other amounts due
and owing,
or deemed to be due and owing, in respect of the predecessor
Mortgage Loan as of
the date of the related REO Acquisition, shall be deemed to
continue to be due
and owing in respect of an REO Loan. Collections in respect of each
REO Loan
(after provision for amounts to be applied to the payment of, or to
be
reimbursed to, the Master Servicer, the Special Servicer, the
Trustee or the
Fiscal Agent for the payment of, the costs of operating, managing,
selling,
leasing and maintaining the related REO Property or for the
reimbursement of or
payment to the Master Servicer, the Special Servicer, the Trustee
or the Fiscal
Agent for other related Servicing Advances as provided in this
Agreement,
interest on such Advances and other related Additional Trust Fund
Expenses)
shall be treated: first, as a recovery of accrued and unpaid
interest on such
REO Loan at the related Mortgage Rate to but not including the Due
Date in the
Collection Period of receipt (exclusive of any portion thereof that
constitutes
Additional Interest); second, as a recovery of principal of such
REO Loan to the
extent of its entire unpaid principal balance; and third, in
accordance with the
normal servicing practices of the Master Servicer, as a recovery of
any other
amounts due and owing in respect of such REO Loan, including,
without
limitation, (i) Yield Maintenance Charges, Prepayment Premiums and
Penalty
Interest and (ii) Additional Interest and other amounts, in that
order.
Notwithstanding the foregoing, all amounts payable or reimbursable
to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as
the case may
be, in respect of the predecessor Mortgage Loan as of the date of
the related
REO Acquisition, including, without limitation, any unpaid
Servicing Fees and
any unreimbursed Advances, together with any interest accrued and
payable to the
Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent, as the
case may be, in respect of such Advances in accordance with
Sections 3.03(d) and
4.03(d), shall continue to be payable or reimbursable to the Master
Servicer,
the Special Servicer, the Trustee or the Fiscal Agent, as the case
may be, in
respect of an REO Loan pursuant to Section 3.05(a). In addition,
Workout-Delayed
Reimbursement Amounts and Nonrecoverable Advances with respect to
such REO Loan,
in each case, that were paid from collections on the Mortgage Loans
and
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resulted in principal distributed to the Certificateholders being
reduced as a
result of the first proviso in the definition of "Principal
Distribution
Amount", shall be deemed outstanding until recovered.
"REO Property": With respect to any Mortgage Loan, a Mortgaged
Property
acquired on behalf and in the name of the Trust Fund for the
benefit of the
Certificateholders through foreclosure, acceptance of a
deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in
connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived
from the
ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1
attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage
Loan, an appraisal of the related Mortgaged Property from an
Independent
Appraiser selected by the Special Servicer, prepared in accordance
with 12
C.F.R. ss. 225.64 and conducted in accordance with the standards of
the
Appraisal Institute.
"Required Appraisal Mortgage Loan": Each Mortgage Loan (or, in the
case of
clause (ii) below, any successor REO Loan with respect thereto) (i)
that is 60
days or more delinquent in respect of any Periodic Payments, (ii)
that becomes
an REO Loan, (iii) that has been modified by the Special Servicer
in a manner
that affects the amount or timing of any Periodic Payment (other
than a Balloon
Payment) (except, or in addition to, bringing monthly Periodic
Payments current
and extending the Maturity Date for less than six months), (iv) 60
days
following the receipt by the Special Servicer of notice that a
receiver has been
appointed and continues in such capacity in respect of the related
Mortgaged
Property, (v) 60 days following the receipt by the Special Servicer
of notice
that the related Mortgagor has become the subject of a bankruptcy
proceeding, or
(vi) with respect to which any Balloon Payment on such Mortgage
Loan has not
been paid by its scheduled maturity date unless the Master Servicer
has, on or
prior to the 60th day after the due date of such Balloon Payment,
received
written evidence from an institutional lender of such lender's
binding
commitment to refinance such Mortgage Loan within 150 days after
the due date of
such Balloon Payment (provided that the Mortgagor continues, during
that period,
to make in respect of each Due Date without omission, periodic
payments
equivalent to the Periodic Payments previously due under the
Mortgage Loan prior
to its Stated Maturity Date) provided, however, that a Required
Appraisal
Mortgage Loan will cease to be a Required Appraisal Mortgage Loan:
(a) with respect to the circumstances described in clauses (i) and
(iii) above, when the related Mortgagor has made three consecutive
full and
timely Periodic Payments under the terms of such Mortgage Loan (as
such
terms may be changed or modified in connection with a bankruptcy or
similar
proceeding involving the related Mortgagor or by reason of a
modification,
waiver or amendment granted or agreed to by the Special Servicer
pursuant
to Section 3.20); and
(b) with respect to the circumstances described in clauses (iv),
(v)
and (vi) above, when such circumstances cease to exist in the
reasonable
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), but, with respect to any bankruptcy or
insolvency
proceedings described in clauses (iv) and (v), no later than the
entry of
an order or
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decree dismissing such proceeding, and with respect to the
circumstances
described in clause (vi) above, no later than the date that the
Special
Servicer agrees to an extension pursuant to Section 3.20 hereof;
so long as at that time no circumstance identified in clauses (i)
through (vi)
above exists that would cause the Mortgage Loan to continue to be
characterized
as a Required Appraisal Mortgage Loan.
"Required Appraisal Value": With respect to any Mortgaged Property
or REO
Property related to a Required Appraisal Mortgage Loan, 90% of an
amount equal
to (A) subject to reduction by the Special Servicer in accordance
with Section
3.09(a), the Appraised Value of such Mortgaged Property or REO
Property, as the
case may be, as determined by a Required Appraisal or letter update
or internal
valuation, if applicable, reduced by (B) the amount of any
obligations secured
by liens on such Mortgaged Property that are prior to the lien of
such Required
Appraisal Mortgage Loan and estimated liquidation expenses;
provided, however,
that for purposes of determining any Appraisal Reduction Amount in
respect of
such Required Appraisal Mortgage Loan, such Appraisal Reduction
Amount shall be
amended no less often than annually to reflect the Required
Appraisal Value
determined pursuant to any Required Appraisal or letter update of a
Required
Appraisal or internal valuation, if applicable, conducted
subsequent to the
original Required Appraisal performed pursuant to Section 3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant
to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered
by the related Mortgagor to be held in escrow by or on behalf of
the mortgagee
representing reserves for environmental remediation, repairs,
capital
improvements, tenant improvements and/or leasing commissions with
respect to the
related Mortgaged Property.
"Residual Certificate": A Class R-I or Class R-II Certificate.
"Responsible Officer": When used with respect to (i) the initial
Trustee
any officer in the Global Securitization Trust Services Group of
the Corporate
Trust Department of the initial Trustee, (ii) any successor
Trustee, any officer
or assistant officer in the Corporate Trust Department of the
Trustee or any
other officer or assistant officer of the Trustee customarily
performing
functions similar to those performed by any of the above designated
officers to
whom a particular matter is referred by the Trustee because of such
officer's
knowledge of and familiarity with the particular subject, and (iii)
the Fiscal
Agent, any officer of the Fiscal Agent.
"Restricted Servicer Reports": Collectively, to the extent not
filed with
the Securities and Exchange Commission, the CMSA Servicer Watch
List, the CMSA
Operating Statement Analysis Report, the CMSA NOI Adjustment
Worksheet, the CMSA
Financial File, the CMSA Comparative Financial Status Report, the
CMSA Loan
Level Reserve/LOC Report and the CMSA Reconciliation of Funds
Report.
"Rule 144A Global Certificate": With respect to any Class of
Book-Entry
Non-Registered Certificates, one or collectively more global
certificates
representing such Class registered in the name of the Depository or
its nominee,
in definitive, fully registered form without interest coupons, and
each of which
certificates has a Rule 144A CUSIP number.
"S&P": Standard & Poor's Ratings Services, a division of
The McGraw-Hill
Companies, Inc., or its successor in interest. If neither such
Rating Agency nor
any successor remains in existence,
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"S&P" shall be deemed to refer to such other nationally
recognized statistical
rating agency or other comparable Person designated by the
Depositor, notice of
which designation shall be given to the Trustee, the Master
Servicer and the
Special Servicer, and specific ratings of S&P herein referenced
shall be deemed
to refer to the equivalent ratings of the party so designated.
"Sarbanes-Oxley Certification": As defined in Section 8.16(a)(iv).
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date
following the Cut-off Date as of which it is outstanding, the
scheduled Periodic
Payment of principal and interest (other than Additional Interest)
on such
Mortgage Loan that is or would be, as the case may be, payable by
the related
Mortgagor on such Due Date under the terms of the related Mortgage
Note as in
effect on the Closing Date, without regard to any subsequent change
in or
modification of such terms in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or a modification, waiver or
amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to Section
3.20 or acceleration of principal by reason of default, and
assuming that each
prior Scheduled Payment has been made in a timely manner.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-SB,
Class A-4, Class A-1A, Class XC or Class XP Certificate.
"Sequential Pay Certificate": Any Class A-1, Class A-2, Class A-3,
Class
A-SB, Class A-4, Class A-1A, Class AJ, Class B, Class C, Class D,
Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class P or
Class Q Certificate.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of
pocket" costs and expenses (including attorneys' fees and expenses
and fees of
real estate brokers) incurred by or on behalf of the Master
Servicer, the
Special Servicer, the Trustee or the Fiscal Agent in connection
with the
servicing of a Mortgage Loan, if a default is imminent thereunder
or after a
default, delinquency or other unanticipated event, or in connection
with the
administration of any REO Property, including, but not limited to,
the cost of
(a) compliance with the obligations of the Master Servicer and the
Special
Servicer, if any, set forth in Section 3.02 and 3.03, (b) (i) real
estate taxes,
assessments, penalties and other similar items, (ii) ground rents
(if
applicable), and (iii) premiums on Insurance Policies, in each
instance if and
to the extent Escrow Payments (if any) collected from the related
Mortgagor are
insufficient to pay such item when due and the related Mortgagor
has failed to
pay such item on a timely basis, (c) the preservation, insurance,
restoration,
protection and management of a Mortgaged Property, including the
cost of any
"force placed" insurance policy purchased by the Master Servicer or
the Special
Servicer to the extent such cost is allocable to a particular
Mortgaged Property
that the Master Servicer or the Special Servicer is required to
cause to be
insured pursuant to Section 3.07(a), (d) obtaining any Insurance
Proceeds or any
Liquidation Proceeds of the nature described in clauses (i)-(iii),
(v) and (vii)
of the definition of "Liquidation Proceeds," (e) any enforcement or
judicial
proceedings with respect to a Mortgaged Property, including,
without limitation,
foreclosures, (f) any Required Appraisal or other appraisal
expressly required
or permitted to be obtained hereunder, (g) the operation,
management,
maintenance and liquidation of any REO Property, including, without
limitation,
appraisals and compliance with Section 3.16(a) (to the extent not
covered by
available funds in the applicable REO Account), (h) obtaining
related ratings
confirmation (to the extent not paid by the
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related Mortgagor), (i) UCC filings (to the extent not reimbursed
by the
Mortgagor), (j) compliance with the obligations of the Master
Servicer or the
Trustee set forth in Section 2.03(a) or (b) and (k) any other
expenditure
expressly designated as a Servicing Advance under this Agreement.
Notwithstanding anything to the contrary, "Servicing Advances"
shall not include
allocable overhead of the Master Servicer or the Special Servicer,
such as costs
for office space, office equipment, supplies and related expenses,
employee
salaries and related expenses and similar internal costs and
expenses or costs
and expenses incurred by any such party in connection with its
purchase of a
Mortgage Loan or REO Property, or costs or expenses expressly
required to be
borne by the Master Servicer or Special Servicer without
reimbursement pursuant
to the terms of this Agreement.
"Servicing Fees": With respect to each Mortgage Loan and any
successor REO
Loan with respect thereto, the Master Servicing Fee and the Special
Servicing
Fee.
"Servicing File": Any documents, certificates, opinions and reports
(other
than documents required to be part of the related Mortgage File)
delivered by
the related Mortgagor in connection with, or relating to, the
origination and
servicing of any Mortgage Loan, and that are reasonably required
for the ongoing
administration of the Mortgage Loan, including appraisals, surveys,
engineering
reports, environmental reports, financial statements, leases, rent
rolls and
tenant estoppels.
"Servicing Officer": Any officer or employee of the Master Servicer
or the
Special Servicer involved in, or responsible for, the
administration and
servicing of the Mortgage Loans, whose name and specimen signature
appear on a
list of servicing officers furnished by such party to the Trustee
and the
Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing Standard": With respect to the Master Servicer or the
Special
Servicer, as applicable, the servicing and administration of the
Mortgage Loans
for which it is responsible hereunder (a) in the same manner in
which, and with
the same care, skill, prudence and diligence with which, the Master
Servicer or
the Special Servicer, as the case may be, generally services and
administers
similar mortgage loans (i) for other third parties, giving due
consideration to
customary and usual standards of practice of prudent institutional
commercial
mortgage loan servicers servicing mortgage loans for third parties
or (ii) held
in its own portfolio, whichever standard is higher, (b) with a view
to (i) the
maximization of the recovery on the Mortgage Loans to the
Certificateholders (as
a collective whole) on a net present value basis (the relevant
discounting of
anticipated collections to be performed at the related Mortgage
Rate) and (ii)
the best interests of the Certificateholders and the Trust Fund,
and (c) without
regard to (i) any relationship that the Master Servicer or the
Special Servicer,
as the case may be, or any Affiliate thereof may have with the
related Mortgagor
(or any Affiliate thereof), the Depositor, any Mortgage Loan
Seller, or any
other party to the transactions contemplated hereby; (ii) the
ownership of any
Certificate by the Master Servicer or the Special Servicer, as the
case may be,
or by any Affiliate thereof; (iii) the right of the Master Servicer
or the
Special Servicer, as the case may be, to receive compensation or
other fees for
its services rendered pursuant to this Agreement; (iv) the
obligations of the
Master Servicer or the Special Servicer, as the case may be, to
make Advances;
(v) the ownership, servicing or management by the Master Servicer
or the Special
Servicer or any Affiliate thereof for others of any other mortgage
loans or
mortgaged property not included in or securing, as the case may be,
the Mortgage
Pool; (vi) any obligation of the Master Servicer or any Affiliate
of the Master
Servicer to repurchase or substitute a Mortgage Loan as a Mortgage
Loan Seller;
(vii) any obligation of the Master Servicer or any Affiliate of the
Master
Servicer to cure a breach of a representation and warranty with
respect to a
Mortgage Loan; and (viii) any debt the Master Servicer or Special
Servicer or
any Affiliate of either has extended to any Mortgagor or any
Affiliate thereof.
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"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through
(g) of the
definition of "Specially Serviced Mortgage Loan".
"Significant Mortgage Loan": At any time of determination, any
Mortgage
Loan that (1) has a principal balance of $20,000,000 or more at the
time of
determination or has, whether (a) individually, (b) as part of a
Crossed Loan
Group or (c) as part of a group of Mortgage Loans made to
affiliated Mortgagors,
a principal balance that is equal to or greater than 5% or more of
the aggregate
outstanding principal balance of the Mortgage Pool at the time of
determination
or (2) is one of the 10 largest Mortgage Loans (which for the
purposes of this
definition shall include Crossed Loan Groups and groups of Mortgage
Loans made
to affiliated Mortgagors) by outstanding principal balance at such
time.
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates evidencing a
$1,000
denomination.
"Sole Certificate Owner": As defined in Section 9.01.
"Special Servicer": Clarion Partners, LLC, or any successor in
interest
thereto, or any successor special servicer appointed as herein
provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage
Loan and each REO Loan, the fee designated as such and payable to
the Special
Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced
Mortgage Loan and each REO Loan, 0.35% per annum.
"Specially Designated Mortgage Loan Documents": With respect to any
Mortgage Loan, the following documents collectively:
(i) the original executed Mortgage Note (or, alternatively, if the
original executed Mortgage Note has been lost, a lost note
affidavit and
indemnity with a copy of such Mortgage Note attached thereto);
(ii) an original or copy of the Mortgage (with or without recording
information);
(iii) the original or a copy of the policy or certificate of
lender's
title insurance or, if such policy has not been issued or located,
an
original or copy of an irrevocable, binding commitment (which may
be a pro
forma policy or a marked version of the policy that has been
executed by an
authorized representative of the title company or an agreement to
provide
the same pursuant to binding escrow instructions executed by an
authorized
representative of the title company) to issue such title insurance
policy;
(iv) an original or copy of any Ground Lease or ground lessor
estoppel; and
(v) a copy of any letter of credit relating to the Mortgage Loan;
provided that whenever the term "Specially Designated Mortgage Loan
Documents"
is used to refer to documents actually received by the Trustee or
by a Custodian
on its behalf, such term, with respect to
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any receipt or certification by the Trustee or a Custodian on its
behalf for
documents described in clauses (iv) and (v) of this definition,
shall be deemed
to include such documents only to the extent the Trustee or a
Custodian on its
behalf has actual knowledge of their existence.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any of
the following events have occurred:
(a) the related Mortgagor shall have failed to make when due any
Periodic Payment, including a Balloon Payment, and the failure
continues
unremedied--
(i)
except in the case of a Balloon Payment, for 60 days; or
(ii) solely in the case of a delinquent Balloon Payment, (x) for
one
day (in the event that clause (ii)(y) following is not
applicable), or (y) if the related Mortgagor (A) continues to
make in respect of each Due Date without omission, periodic
payments equivalent to the Periodic Payments previously due under
the Mortgage Loan prior to its maturity date, and (B) delivers a
refinancing commitment within 60 days after its maturity date,
then for such period (not to exceed 150 days) beyond the related
maturity date ending on the date on which it is determined that
the refinancing could not reasonably be expected to occur; or
(b) the Master Servicer, or the Special Servicer (with the consent
of
the Controlling Class Representative), shall have determined, in
its
reasonable judgment (exercised in accordance with the Servicing
Standard),
based on, among other things, communications with the related
Mortgagor,
that a default in making a Periodic Payment (including a Balloon
Payment)
is likely to occur and is likely to remain unremedied for at least
60 days;
or
(c) the Master Servicer, or the Special Servicer (with the consent
of
the Controlling Class Representative), shall have determined, in
its
reasonable judgment (exercised in accordance with the Servicing
Standard),
that a default (other than an Acceptable Insurance Default or a
default
described in clause (a) above) has occurred that may materially
impair the
value of the Mortgaged Property as security for the Mortgage Loan
and the
default continues unremedied beyond the applicable grace period
under the
terms of the Mortgage Loan (or, if no grace period is specified,
for 60
days, provided that a default that gives rise to an acceleration
right
without any grace period shall be deemed to have a grace period
equal to
zero); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under
any
present or future federal or state bankruptcy, insolvency or
similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and
liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs,
shall have been entered against the related Mortgagor; provided
that if
such decree or order is discharged, dismissed or stayed within 60
days it
shall not be a Specially Serviced Mortgage Loan (and no Special
Servicing
Fees shall be payable); or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of
debt, marshaling of assets and liabilities or similar proceedings
of or
relating to such Mortgagor or of or relating to all or
substantially all of
its property; or
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(f) the related Mortgagor shall admit in writing its inability to
pay
its debts generally as they become due, file a petition to take
advantage
of any applicable insolvency or reorganization statute, make an
assignment
for the benefit of its creditors, or voluntarily suspend payment of
its
obligations; or
(g) the Master Servicer shall have received notice of the
commencement
of foreclosure or similar proceedings with respect to the related
Mortgaged
Property;
provided, however, that a Mortgage Loan will cease to be a
Specially Serviced
Mortgage Loan:
(i) with respect to the circumstances described in clause (a)
above,
when the related Mortgagor has made three consecutive full and
timely
Periodic Payments under the terms of such Mortgage Loan (as such
terms may
be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a
modification,
waiver or amendment granted or agreed to by the Special Servicer
pursuant
to Section 3.20);
(ii) with respect to the circumstances described in clauses (b),
(d),
(e) and (f) above, when such circumstances cease to exist in the
reasonable
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), but, with respect to any bankruptcy or
insolvency
proceedings described in clauses (d), (e) and (f), no later than
the entry
of an order or decree dismissing such proceeding;
(iii) with respect to the circumstances described in clause (c)
above,
when such default is cured; and
(iv) with respect to the circumstances described in clause (g)
above,
when such proceedings are terminated;
so long as at that time no other circumstance identified in clauses
(a) through
(g) above exists that would otherwise cause such Mortgage Loan to
continue to be
characterized as a Specially Serviced Mortgage Loan.
"Startup Day": With respect to each of REMIC I and REMIC II, the
day
designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the states of New York,
Illinois
and Missouri and by any other state or local taxing authorities as
may, by
notice to the Trustee, assert jurisdiction over the trust fund or
any portion
thereof, or which, according to an Opinion of Counsel addressed to
the Trustee,
have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date
specified in the Mortgage Note (as in effect on the Closing Date)
on which the
last payment of principal is due and payable under the terms of the
Mortgage
Note (as in effect on the Closing Date), without regard to any
change in or
modification of such terms in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or a modification, waiver or
amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to Section
3.20 and, in the case of an ARD Loan, without regard to its
Anticipated
Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan as of
any
date of determination, an amount (which amount shall not be less
than zero)
equal to (x) the Cut-off Date
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Balance of such Mortgage Loan (or, in the case of a Qualified
Substitute
Mortgage Loan that is a Mortgage Loan, the unpaid principal balance
thereof
after application of all principal payments due on or before the
related date of
substitution, whether or not received), permanently reduced on each
Distribution
Date, to not less than zero, by (y) the sum of:
(i) all payments and other collections of principal, if any, with
respect to such Mortgage Loan that are included as part of the
Principal
Distribution Amount for such Distribution Date pursuant to clause
(a), (b),
(c) and/or (d) of, and without regard to the provisos to, the
definition of
"Principal Distribution Amount";
(ii) any other amount received with respect to such Mortgage Loan
during the related Collection Period that is not included among the
payments and other collections of principal described in the
immediately
preceding clause (i), as to which there is not and never has been
an
outstanding P&I Advance and that is actually applied in
reduction of the
amount of principal owing from the related Mortgagor;
(iii) any amount of reduction in the outstanding principal balance
of
such Mortgage Loan resulting from a Deficient Valuation that
occurred
during the related Collection Period; and
(iv) any related Realized Loss (other than a Deficient Valuation)
incurred during the related Collection Period that represents a
loss of
principal with respect to that Mortgage Loan.
With respect to any REO Loan, as of any date of determination, an
amount
equal to (x) the Stated Principal Balance of the predecessor
Mortgage Loan as of
the date of the related REO Acquisition, permanently reduced on
each subsequent
Distribution Date, to not less than zero, by (y) the sum of:
(a) all amounts, if any, collected with respect to the related REO
Property that are allocable as principal of the subject REO Loan
and that
are included as part of the Principal Distribution Amount for such
Distribution Date pursuant to clause (e) and/or clause (f) of, and
without
regard to the provisos to, the definition of "Principal
Distribution
Amount"; and
(b) any related Realized Losses incurred during the related
Collection
Period that represents a loss of principal with respect to the
subject REO
Loan.
A Mortgage Loan or an REO Loan shall be deemed to be part of the
Trust Fund
and to have an outstanding Stated Principal Balance until the
Distribution Date
on which the payments or other proceeds, if any, received in
connection with a
Liquidation Event in respect thereof are to be (or, if no such
payments or other
proceeds are received in connection with such Liquidation Event,
would have
been) distributed to Certificateholders.
"Subordinated Certificate": Any Class AJ, Class B, Class C, Class
D, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class
P, Class Q, Class R-I or Class R-II Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special
Servicer has entered into a Sub-Servicing Agreement.
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"Sub-Servicing Agreement": The written contract between the Master
Servicer
or the Special Servicer, on the one hand, and any Sub-Servicer, on
the other
hand, relating to servicing and administration of Mortgage Loans as
provided in
Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to
or as contemplated by Section 2.03(a) hereof, an amount equal to
the excess, if
any, of the Purchase Price of the Mortgage Loan being replaced
calculated as of
the date of substitution over the Stated Principal Balance of the
related
Qualified Substitute Mortgage Loan as of the date of substitution.
In the event
that one or more Qualified Substitute Mortgage Loans are
substituted (at the
same time) for one or more deleted Mortgage Loans, the Substitution
Shortfall
Amount shall be determined as provided in the preceding sentence on
the basis of
the aggregate Purchase Price of the Mortgage Loan or Mortgage Loans
being
replaced and the aggregate Stated Principal Balance of the related
Qualified
Substitute Mortgage Loan or Mortgage Loans.
"Tax Matters Person": With respect to each of the REMICs created
hereunder,
the Person designated as the "tax matters person" of such REMIC in
the manner
provided under Treasury Regulations Section 1.860F-4(d), which
Person shall be
the applicable Plurality Residual Certificateholder.
"Tax Returns": The federal income tax returns on Internal Revenue
Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed
on behalf of each of REMIC I and REMIC II due to its classification
as a REMIC
under the REMIC Provisions, the federal income tax return to be
filed on behalf
of each of Grantor Trust Z, Grantor Trust E and Grantor Trust B due
to its
classification as a grantor trust under the Grantor Trust
Provisions, together
with any and all other information, reports or returns that may be
required to
be furnished to the Certificateholders or filed with the Internal
Revenue
Service under any applicable provisions of federal tax law or any
other
governmental taxing authority under applicable State and Local Tax
laws.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation,
or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereunder.
"Trust Fund": Collectively, (i) all of the assets of REMIC I and
REMIC II,
(ii) the Grantor Trust Z Assets, (iii) the Grantor Trust E Assets
and (iv) the
Grantor Trust B Assets.
"Trustee": LaSalle Bank National Association, its successor in
interest, or
any successor trustee appointed as herein provided.
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"Trustee Fee": With respect to each Mortgage Loan and each REO Loan
for any
Distribution Date (excluding, in the case of the initial
Distribution Date, any
Closing Date Deposit Mortgage Loan), an amount equal to one month's
interest for
the most recently ended calendar month (calculated on the same
interest accrual
basis as such Mortgage Loan or REO Loan, as the case may be),
accrued at the
Trustee Fee Rate on the Stated Principal Balance of such Mortgage
Loan or REO
Loan, as the case may be, outstanding immediately following the
prior
Distribution Date (or, in the case of the initial Distribution
Date, as of the
Closing Date).
"Trustee Fee Rate": 0.0018% per annum.
"Trustee Investment Period": With respect to any Distribution Date,
the
period commencing on the day immediately following the preceding
Distribution
Date (or, in the case of the initial Distribution Date, commencing
on the
Closing Date) and ending on and including the subject Distribution
Date.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement filed pursuant to
the UCC.
"Underwriter": Each of MLPF&S, Banc of America Securities,
KeyBanc Capital
Markets, a Division of McDonald Investments Inc., J.P. Morgan
Securities Inc.
and Morgan Stanley & Co. Incorporated, or in each case, its
respective successor
in interest.
"United States Tax Person": A citizen or resident of the United
States, a
corporation, partnership or other entity created or organized in,
or under the
laws of, the United States or any political subdivision thereof, or
an estate
whose income from sources without the United States is includable
in gross
income for United States federal income tax purposes regardless of
its
connection with the conduct of a trade or business within the
United States, or
a trust if a court within the United States is able to exercise
supervision over
the administration of the trust and one or more United States
persons have the
authority to control all substantial decisions of the trust (or to
the extent
provided in the Treasury regulations, if the trust was in existence
on August
20, 1996 and elected to be treated as a United States person), all
within the
meaning of Section 7701(a)(30) of the Code.
"Unliquidated Advance": Any Advance previously made by a party
hereto that
(i) is not a Nonrecoverable Advance, (ii) has been previously
reimbursed to the
party that made the Advance as a Workout-Delayed Reimbursement
Amount pursuant
to Section 3.05(a)(vii) out of principal collections on other
Mortgage Loans and
(iii) was originally made with respect to an item that has not been
subsequently
recovered out of collections on or proceeds of the related Mortgage
Loan or any
related REO Property (and provided that no Liquidation Event has
occurred with
respect to the related Mortgage Loan or any related REO Property).
"Unrestricted Servicer Reports": Collectively, the CMSA Delinquent
Loan
Status Report, the CMSA Historical Loan Modification and Corrected
Mortgage Loan
Report, the CMSA Historical Liquidation Report, the CMSA REO Status
Report, the
CMSA Advance Recovery Report and, if and to the extent filed with
the Securities
and Exchange Commission, such reports and files as would, but for
such filing,
constitute Restricted Servicer Reports.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers of America.
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"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times
during the term
of this Agreement, 100% of the Voting Rights shall be allocated
among the
Holders of the Regular Certificates. Ninety-six percent (96%) of
the Voting
Rights shall be allocated among the Class A-1, Class A-2, Class
A-3, Class A-SB,
Class A-4, Class A-1A, Class AJ, Class B, Class C, Class D, Class
E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class P and Class
Q Certificates in proportion to the respective Class Principal
Balances of their
Certificates. Four percent (4%) in the aggregate of the Voting
Rights shall be
allocated to the Class X Certificates (allocated, pro rata, between
the Class XC
and Class XP Certificates based upon their respective Notional
Amounts). The
Class Z and the Residual Certificates shall have no voting rights.
Voting Rights
allocated to a Class of Certificateholders shall be allocated among
such
Certificateholders in standard proportion to the Percentage
Interests evidenced
by their respective Certificates. In addition, if the Master
Servicer is the
holder of any Certificates, the Master Servicer, in its capacity as
a
Certificateholder, shall have no Voting Rights with respect to
matters
concerning compensation affecting the Master Servicer.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to
any
Distribution Date, the rate per annum equal to the weighted
average, expressed
as a percentage and rounded to six decimal places, of the
respective Net
Mortgage Pass-Through Rates applicable to the Mortgage Loans and
any REO Loans
for such Distribution Date, weighted on the basis of their
respective Stated
Principal Balances immediately following the preceding Distribution
Date (or, in
the case of the initial Distribution Date, as of the Closing Date).
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan,
the amount of any Advance made with respect to such Mortgage Loan
on or before
the date such Mortgage Loan becomes (or, but for the making of
three monthly
payments under its modified terms, would then constitute) a
Corrected Mortgage
Loan, together with (to the extent accrued and unpaid) interest on
such
Advances, to the extent that (i) such Advance is not reimbursed to
the Person
who made such Advance on or before the date, if any, on which such
Mortgage Loan
becomes a Corrected Mortgage Loan and (ii) the amount of such
Advance becomes an
obligation of the Mortgagor to pay such amount under the terms of
the modified
loan documents. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit
the right of
any Person hereunder to determine that such amount instead
constitutes a
Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Mortgage Loan, the
fee
designated as such and payable to the Special Servicer pursuant to
the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan,
1.00%.
"Yield Maintenance Charge": Payments paid or payable, as the
context
requires, on a Mortgage Loan as the result of a Principal
Prepayment thereon,
not otherwise due thereon in respect of principal or interest,
which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to
compensate the
holder for reinvestment losses based on the value of an interest
rate index at
or near the time of prepayment. Any other prepayment premiums,
penalties and
fees not so calculated will not be considered "Yield Maintenance
Charges." In
the event that a Yield Maintenance Charge shall become due for any
particular
Mortgage Loan, the Master Servicer or the Special Servicer, as
applicable, shall
be required to follow the terms and provisions contained in the
applicable
Mortgage Note, provided, however, in the event the particular
Mortgage Note
shall not specify the U.S. Treasuries which shall be used in
determining the
discount rate or the reinvestment yield to be applied in such
calculation, the
Master Servicer or the Special Servicer, as applicable, shall be
required to use
those U.S.
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Treasuries having maturity dates most closely approximating the
maturity of such
Mortgage Loan. Accordingly if either no U.S. Treasury issue, or
more than one
U.S. Treasury issue, shall coincide with the term over which the
Yield
Maintenance Charge shall be calculated (which depending on the
applicable
Mortgage Note is based on the remaining average life of the
Mortgage Loan or the
actual term remaining through the Maturity Date), the Master
Servicer or the
Special Servicer, as applicable, shall use the U.S. Treasury whose
reinvestment
yield is the lowest, with such yield being based on the bid price
for such issue
as published in The Wall Street Journal on the date that is 14 days
prior to the
date that the Yield Maintenance Charge shall become due and payable
(or, if such
bid price is not published on that date, the next preceding date on
which such
bid price is so published) and converted to a monthly compounded
nominal yield.
The monthly compounded nominal yield ("MEY") is derived from the
reinvestment
yield or discount rate and shall be defined as MEY = 12X
({(1+"BEY"/2)^1/6}-1)
where BEY is defined as the U.S. Treasury Reinvestment Yield which
is in decimal
form and not in percentage, and 1/6 is the exponential power to
which a portion
of the equation is raised. For example, using a BEY of 5.50%, the
MEY = 12 X
({(1+ .055/2)^0.16667}-1) where .055 is the decimal version of the
percentage
5.5% and 0.16667 is the decimal version of the exponential power.
The MEY in the
above calculation is 5.44%.
SECTION 1.02. Certain Adjustments to the Principal Distributions on
the
Certificates.
(a) If any party hereto is reimbursed out of general collections on
the
Mortgage Pool on deposit in the Collection Account for (i) any
unreimbursed
Advance that has been or is determined to be a Nonrecoverable
Advance (together
with interest accrued and payable thereon pursuant to Section
3.03(d) or Section
4.03(d), as applicable, to the extent such interest was paid
hereunder from a
source other than related Default Charges) or (ii) any
Workout-Delayed
Reimbursement Amount, then (for purposes of calculating
distributions on the
Certificates) such reimbursement and payment of interest shall be
deemed to have
been made:
first, out of any amounts then on deposit in the Collection Account
that represent payments or other collections of principal received
by the
Trust with respect to the Mortgage Loans and/or REO Loans in the
Loan Group
that includes the Mortgage Loan or REO Loan in respect of which
such
Nonrecoverable Advance was made or in respect of which such
Workout-Delayed
Reimbursement Amount is outstanding, and which amounts, but for
their
application to reimburse such Nonrecoverable Advance (and/or to pay
interest thereon) or to reimburse such Workout-Delayed
Reimbursement
Amount, as the case may be, would be included in the Available
Distribution
Amount for the related Distribution Date;
second, out of any amounts then on deposit in the Collection
Account
that represent payments or other collections of principal received
by the
Trust with respect to the Mortgage Loans or REO Loans in the Loan
Group
that does not include the Mortgage Loan or REO Loan in respect of
which
such Nonrecoverable Advance was made or in respect of which such
Workout-Delayed Reimbursement Amount is outstanding, and which
amounts, but
for their application to reimburse such Nonrecoverable Advance
(and/or to
pay interest thereon) or to reimburse such Workout-Delayed
Reimbursement
Amount, as the case may be, would be included in the Available
Distribution
Amount for the related Distribution Date;
third, solely in the case of the reimbursement of a Nonrecoverable
Advance and/or the payment of interest thereon, out of any amounts
then on
deposit in the Collection Account that represent any other payments
or
other collections received by the Trust with respect
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to the Mortgage Loans or REO Loans in the Loan Group that includes
the
Mortgage Loan or REO Loan in respect of which such Nonrecoverable
Advance
was made, and which amounts, but for their application to reimburse
a
Nonrecoverable Advance and/or to pay interest thereon, would be
included in
the Available Distribution Amount for the related Distribution
Date;
fourth, solely in the case of the reimbursement of a Nonrecoverable
Advance and/or the payment of interest thereon, out of any amounts
then on
deposit in the Collection Account that represent any other payments
or
other collections received by the Trust with respect to the
Mortgage Loans
or REO Loans in the Loan Group that does not include the Mortgage
Loan or
REO Loan in respect of which such Nonrecoverable Advance was made,
and
which amounts, but for their application to reimburse a
Nonrecoverable
Advance and/or to pay interest thereon, would be included in the
Available
Distribution Amount for the related Distribution Date; and
fifth, solely in the case of the reimbursement of a Nonrecoverable
Advance and/or the payment of interest thereon, out of any other
amounts
then on deposit in the Collection Account that may be available to
reimburse the subject Nonrecoverable Advance and/or to pay interest
thereon.
(b) If and to the extent that any payment or other collection of
principal
received on the Mortgage Pool during any Collection Period is
deemed to be
applied in accordance with clause first or second of Section
1.02(a) to
reimburse a Nonrecoverable Advance (or to pay interest thereon) or
to reimburse
a Workout-Delayed Reimbursement Amount, then:
(i) the Principal Distribution Amount for the related Distribution
Date shall be reduced by the portion of such payment or other
collection of
principal that, but for the application of this Section 1.02(b),
would
constitute part of such Principal Distribution Amount; and
(ii) depending on whether such payment or other collection of
principal relates to Loan Group 1 or Loan Group 2, there shall be a
corresponding reduction in the Loan Group 1 Principal Distribution
Amount
or the Loan Group 2 Principal Distribution Amount, as applicable,
for the
related Distribution Date.
(c) If and to the extent that any Nonrecoverable Advance or
Workout-Delayed
Reimbursement Amount is reimbursed or interest on any
Nonrecoverable Advance is
paid out of payments or other collections of principal received on
the Mortgage
Pool (with a corresponding reduction to the Principal Distribution
Amount, and
to either or both of the Loan Group 1 Principal Distribution Amount
and the Loan
Group 2 Principal Distribution Amount, for the relevant
Distribution Date), and
further if and to the extent that the particular item for which
such Advance was
originally made or such Workout-Delayed Reimbursement Amount is
outstanding is
subsequently collected out of payments or other collections in
respect of the
related Mortgage Loan or REO Loan (such item, upon collection, a
"Recovered
Amount"), then (without duplication of amounts already included
therein):
(i) the Principal Distribution Amount for the Distribution Date
that
corresponds to the Collection Period in which such Recovered Amount
was
received, shall be increased by an amount equal to the lesser of
(A) such
Recovered Amount and (B) any previous reduction in the Principal
Distribution Amount for a prior Distribution Date pursuant to
Section
1.02(b) above resulting from the reimbursement of the subject
Nonrecoverable Advance (and/or
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the payment of interest thereon) or the reimbursement of the
subject
Workout-Delayed Reimbursement Amount, as the case may be; and
(ii) the Loan Group 1 Principal Distribution Amount and/or the Loan
Group 2 Principal Distribution Amount for the Distribution Date
that
corresponds to the Collection Period in which such Recovered Amount
was
received, shall be increased by an amount equal to the lesser of
(A) such
Recovered Amount and (B) any previous reduction in the Loan Group 1
Principal Distribution Amount and/or the Loan Group 2 Principal
Distribution Amount, as applicable, for a prior Distribution Date
pursuant
to Section 1.02(b) above resulting from the reimbursement of the
subject
Nonrecoverable Advance (and/or the payment of interest thereon) or
the
reimbursement of the subject Workout-Delayed Reimbursement Amount,
as the
case may be;
provided that, if both the Loan Group 1 Principal Distribution
Amount and the
Loan Group 2 Principal Distribution Amount for a prior Distribution
Date were
reduced pursuant to Section 1.02(b) above as a result of the
reimbursement of
the subject Advance (and/or the payment of interest thereon) or the
reimbursement of the subject Workout-Delayed Reimbursement Amount,
as the case
may be, and if the subject Recovered Amount is not sufficient to
cover the full
amount of such reductions, then such Recovered Amount shall be
applied to
increase the Loan Group 1 Principal Distribution Amount and the
Loan Group 2
Principal Distribution Amount in accordance with, and to the extent
permitted
by, clause (ii) of this Section 1.02(c) in reverse order of the
application of
payments and other collections of principal on the respective Loan
Groups in
accordance with Section 1.02(a) to reimburse the subject
Nonrecoverable Advance
(and/or pay interest thereon) or to reimburse the subject
Workout-Delayed
Reimbursement Amount, as the case may be.
(d) For purposes of making the adjustments to the Principal
Distribution
Amount, the Loan Group 1 Principal Distribution Amount and the Loan
Group 2
Principal Distribution Amount, respectively, for each Distribution
Date
contemplated by this Section 1.02, each of those amounts shall be
calculated in
accordance with the respective definitions thereof (without regard
to this
Section 1.02) and shall thereafter be adjusted as provided in this
Section 1.02.
(e) Nothing contained in this Section 1.02 is intended to limit the
ability
of any party hereto that is entitled to reimbursement hereunder for
any
unreimbursed Advances that have been or are determined to be
Nonrecoverable
Advances (together with interest accrued and payable thereon
pursuant to Section
3.03(d) or Section 4.03(d)) to collections of principal received by
the Trust
with respect to the Mortgage Pool; instead the order of priority
set forth in
Section 1.02(a) is a deemed allocation only for purposes of
calculating
distributions on the Certificates.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof,
does hereby establish a common law trust under the laws of the
State of New
York, designated as "Merrill Lynch Mortgage Trust 2005-MKB2" and
consisting of
the Trust Fund, and does hereby assign, sell, transfer, set over
and otherwise
convey to the Trustee, in trust, without recourse, for the benefit
of the
Certificateholders (and for the benefit of the other parties to
this Agreement
as their respective interests may appear) all the right, title and
interest of
the Depositor, in, to and under (i) the Mortgage Loans and all
documents
included in the related Mortgage Files and Servicing Files, (ii)
the rights of
the Depositor under Sections 2, 3, 8, 9, 10, 11, 12, 13, 14, 16,
17, 19 and 20
of each Mortgage Loan Purchase Agreement, and (iii) all other
assets included or
to be included in the Trust Fund. Such assignment includes all
interest and
principal received or receivable on or with respect to the Mortgage
Loans and
due after the Cut-off Date. The transfer of the Mortgage Loans and
the related
rights and property accomplished hereby is absolute and,
notwithstanding Section
11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section
2.01(a) above the Depositor shall direct, and hereby represents and
warrants
that it has directed, the Mortgage Loan Sellers pursuant to their
respective
Mortgage Loan Purchase Agreements to deliver to and deposit with,
or cause to be
delivered to and deposited with, the Trustee or a Custodian
appointed thereby
(with a copy to the Master Servicer and Special Servicer), on or
before the
Closing Date, the Mortgage File for each Mortgage Loan so assigned.
The Special
Servicer may request the Master Servicer to deliver a copy of the
Servicing File
for any Mortgage Loan (other than a Specially Serviced Mortgage
Loan). None of
the Trustee, the Fiscal Agent, any Custodian, the Master Servicer
or the Special
Servicer shall be liable for any failure by any Mortgage Loan
Seller or the
Depositor to comply with the document delivery requirements of the
related
Mortgage Loan Purchase Agreement and this Section 2.01(b).
(c) If any Mortgage Loan Seller cannot deliver, or cause to be
delivered,
on the Closing Date, as to any Mortgage Loan, any of the documents
and/or
instruments referred to in clauses (ii), (iii), (vi) (if recorded)
and (viii) of
the definition of "Mortgage File", with evidence of recording
thereon, solely
because of a delay caused by the public recording office where such
document or
instrument has been delivered for recordation, the delivery
requirements of the
related Mortgage Loan Purchase Agreement and Section 2.01(b) shall
be deemed to
have been satisfied as to such non-delivered document or
instrument, and such
non-delivered document or instrument shall be deemed to have been
included in
the Mortgage File if a photocopy of such non-delivered document or
instrument
(certified by the applicable Mortgage Loan Seller to be a true and
complete copy
of the original thereof submitted for recording) is delivered to
the Trustee or
a Custodian appointed thereby on or before the Closing Date, and
either the
original of such non-delivered document or instrument, or a
photocopy thereof,
with evidence of recording or filing as applicable, thereon, is
delivered to the
Trustee or such Custodian within 120 days of the Closing Date (or
within such
longer period after the Closing Date as the Trustee may consent to,
which
consent shall not be unreasonably withheld so long as the
applicable Mortgage
Loan Seller is, in good faith, attempting to obtain from the
appropriate county
recorder's office such original or photocopy, as evidenced by an
officer's
certificate). If the applicable Mortgage Loan Seller cannot
deliver, or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or
instruments
referred to in clauses (ii), (iii), (vi) (if recorded) and (viii)
of the
definition of "Mortgage
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File," with evidence of recording or filing as applicable, thereon,
for any
other reason, including, without limitation, that such
non-delivered document or
instrument has been lost, the delivery requirements of the related
Mortgage Loan
Purchase Agreement and Section 2.01(b) shall be deemed to have been
satisfied as
to such non-delivered document or instrument and such non-delivered
document or
instrument shall be deemed to have been included in the Mortgage
File if a
photocopy of such non-delivered document or instrument (with
evidence of
recording in the proper office thereon and with respect to the item
referred to
in clause (ii) of the definition of "Mortgage File", certified by
the
appropriate county recorder's office to be a true and complete copy
of the
original submitted for recording) is delivered to the Trustee or a
Custodian
appointed thereby on or before the Closing Date.
If, on the Closing Date as to any Mortgage Loan (other than any
Mortgage
Loan that has been recorded on the MERS(R) System), the applicable
Mortgage Loan
Seller does not deliver in complete and recordable form any one of
the
assignments in favor of the Trustee referred to in clause (iv) or
(v) of the
definition of "Mortgage File" (in the case of clause (iv) solely
because of a
delay caused by the recording office where such document or
instrument has been
delivered for recordation), the applicable Mortgage Loan Seller may
provisionally satisfy the delivery requirements of the related
Mortgage Loan
Purchase Agreement and Section 2.01(b) by delivering with respect
to such
Mortgage Loan on the Closing Date an omnibus assignment of such
Mortgage Loan;
provided that all required original assignments with respect to
such Mortgage
Loan in fully complete and recordable form shall be delivered to
the Trustee or
its Custodian within 120 days of the Closing Date (or within such
longer period,
not to exceed 18 months, as the Trustee in its reasonable
discretion may permit
so long as the applicable Mortgage Loan Seller is, as certified in
writing to
the Trustee no less often than every 90 days, attempting in good
faith to obtain
from the appropriate county recorder's office such original or
photocopy).
If, on the Closing Date as to any MERS Mortgage Loan, the
applicable
Mortgage Loan Seller does not deliver written evidence of the
Trustee's
ownership of such Mortgage Loan on the MERS(R) System showing the
Trustee as a
beneficiary of the assignment referred to in each of clause (iv)
and (v) of the
definition of "Mortgage File" or the UCC Financing Statements
referred to in
clause (viii) of the definition of "Mortgage File", the applicable
Mortgage Loan
Seller may satisfy the delivery requirements of the related
Mortgage Loan
Purchase Agreement, as applicable, and Section 2.01(b) by
delivering such
evidence of ownership within 90 days following the Closing Date;
provided that,
during such time, the applicable Mortgage Loan Seller shall execute
any
documents requested by the Master Servicer or the Special Servicer
with respect
to such MERS Mortgage Loan that, in the reasonable discretion of
the Master
Servicer or the Special Servicer (exercised in accordance with the
Servicing
Standard), are necessary to evidence the Trustee's ownership of, or
are
otherwise required for an immediate servicing need with respect to,
such
Mortgage Loan.
(d) The Trustee shall, for a fee paid to the Trustee by Bank of
America on
the Closing Date as to each Bank of America Mortgage Loan (other
than any
Mortgage Loan that has been recorded on the MERS(R) System),
promptly (and in
any event within 90 days following the later of the Closing Date or
the delivery
of each assignment and UCC Financing Statement to the Trustee)
cause to be
submitted for recording or filing, as the case may be, in the
appropriate public
office for real property records or UCC Financing Statements, as
appropriate and
to the extent timely delivered to the Trustee in final, recordable
form, each
such assignment of Mortgage, each such assignment of Assignment of
Leases and,
to the extent the Trustee has actual knowledge that such documents
are to be
recorded, any other recordable documents relating to each such
Mortgage Loan, in
favor of the Trustee referred to in clause (iv) of the definition
of "Mortgage
File" and each such UCC Financing Statement assignment in favor of
the Trustee
and so delivered to the Trustee and referred to in clause (viii) of
the
definition of
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"Mortgage File." Each such assignment and UCC Financing Statement
assignment
shall reflect that the recorded original should be returned by the
public
recording office to the Trustee or its designee following
recording, and each
such assignment and UCC Financing Statement assignment shall
reflect that the
file copy thereof should be returned to the Trustee or its designee
following
filing; provided that in those instances where the public recording
office
retains the original assignment of Mortgage or assignment of
Assignment of
Leases, the Trustee shall obtain therefrom a certified copy of the
recorded
original, at the expense of Bank of America. If any such document
or instrument
is lost or returned unrecorded or unfiled, as the case may be,
because of a
defect therein, the Trustee shall direct Bank of America pursuant
to the Bank of
America Mortgage Loan Purchase Agreement to promptly prepare or
cause to be
prepared a substitute therefor or cure such defect, as the case may
be, and
thereafter the Trustee shall upon receipt thereof cause the same to
be duly
recorded or filed, as appropriate. Upon request, the Trustee shall
forward to
the Master Servicer a copy of each of the aforementioned recorded
assignments
following the Trustee's receipt thereof, to the extent not
previously provided.
The Depositor hereby represents and warrants that with respect to
each
Mortgage Loan that is a Merrill Mortgage Loan or KeyBank Mortgage
Loan, MLMLI
and KeyBank has each covenanted in the related Mortgage Loan
Purchase Agreement
that it shall retain or cause to be retained, an Independent Person
(such
Person, the "Recording/Filing Agent") that shall, as to each such
Mortgage Loan,
promptly (and in any event within 90 days following the later of
the Closing
Date or the delivery of each assignment and UCC Financing Statement
to the
Recording/Filing Agent) cause to be submitted, for recording or
filing, as the
case may be, in the appropriate public office for real property
records or UCC
Financing Statements, each such assignment of Mortgage, each such
assignment of
Assignment of Leases and any other recordable documents relating to
each such
Mortgage Loan in favor of the Trustee that is referred to in clause
(iv) of the
definition of "Mortgage File" and each such UCC Financing Statement
assignment
in favor of the Trustee that is referred to in clause (viii) of the
definition
of "Mortgage File," in each case pursuant to Section 2(d) of the
related
Mortgage Loan Purchase Agreement.
(e) All documents and records in the Servicing File (except draft
documents, privileged communications, credit underwriting or due
diligence
analyses, credit committee briefs or memoranda or other internal
approval
documents or data or internal worksheets, memoranda, communications
or
evaluations of the Mortgage Loan Seller) in possession of the
Depositor or the
Mortgage Loan Sellers that relate to the Mortgage Loans and that
are not
required to be a part of a Mortgage File in accordance with the
definition
thereof (including any letter of credit that is not part of the
Mortgage File
because the Master Servicer or any Sub-Servicer therefor has
possession
thereof), together with all Escrow Payments and Reserve Accounts in
the
possession thereof, shall be delivered to the Master Servicer or
such other
Person as may be directed by the Master Servicer (at the expense of
the
applicable Mortgage Loan Seller) on or before the Closing Date and
shall be held
by the Master Servicer on behalf of the Trustee in trust for the
benefit of the
Certificateholders; provided, however, the Master Servicer shall
have no
responsibility for holding documents created or maintained by the
Special
Servicer hereunder and not delivered to the Master Servicer. The
applicable
Mortgage Loan Seller shall pay any costs of assignment or amendment
of any
letter of credit related to the Mortgage Loans such Mortgage Loan
Seller sold to
the Depositor required in order for the Master Servicer to draw on
such letter
of credit.
The Master Servicer hereby acknowledges the receipt by it of the
Closing
Date Deposit. The Master Servicer shall hold the Closing Date
Deposit in the
Collection Account and shall include the Closing Date Deposit in
the amounts it
is required to remit to the Trustee on the initial P&I Advance
Date. The Closing
Date Deposit shall remain uninvested.
-72-
(f) In connection with the Depositor's assignment pursuant to
Section
2.01(a) above, the Depositor shall deliver to the Custodian, the
Master Servicer
and the Special Servicer on or before the Closing Date and hereby
represents and
warrants that it has delivered a copy of a fully executed
counterpart of each of
the Mortgage Loan Purchase Agreements as in full force and effect
on the Closing
Date.
(g) The Depositor hereby consents to the filing of any UCC
Financing
Statements contemplated by this Agreement without its consent.
SECTION 2.02. Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of the
Depositor's
right, title and interest in the assets that constitute the Trust
Fund, and
further acknowledges receipt by it or a Custodian on its behalf,
subject to the
provisos in the definition of "Mortgage File" and the provisions of
Section 2.01
and subject to the further limitations on review provided for in
Section 2.02(b)
and the exceptions noted on the schedule of exceptions of (i) the
Mortgage File
delivered to it for each Mortgage Loan and (ii) a copy of a fully
executed
counterpart of each Mortgage Loan Purchase Agreement, all in good
faith and
without notice of any adverse claim, and declares that it or a
Custodian on its
behalf holds and will hold such documents and the other documents
received by it
that constitute portions of the Mortgage Files, and that it holds
and will hold
the Mortgage Loans and other assets included in the Trust Fund, in
trust for the
exclusive use and benefit of all present and future
Certificateholders. The
Trustee hereby certifies to each of the Depositor, the Master
Servicer, the
Special Servicer and each Mortgage Loan Seller that without regard
to the
proviso in the definition of "Mortgage File", each of the Specially
Designated
Mortgage Loan Documents are in its possession. In addition, within
90 days after
the Closing Date, the Trustee or the Custodian on its behalf will
review the
Mortgage Files and certify (in a certificate substantially in the
form of
Exhibit C) to each of the Depositor, the Master Servicer, the
Special Servicer,
each Mortgage Loan Seller (with copies to the Controlling Class
Representative)
that, with respect to each Mortgage Loan listed in the Mortgage
Loan Schedule
(except as specifically identified in the schedule of exceptions
annexed
thereto), (i) without regard to the proviso in the definition of
"Mortgage
File," all documents specified in clauses (i), (ii), (iv)(a), (v)
and (vii), and
to the extent provided in the related Mortgage File and actually
known by a
Responsible Officer of the Trustee or the Custodian to be required
or to the
extent listed on the Mortgage Loan checklist, if any, provided by
the related
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase
Agreement,
clauses (iii), (iv)(b), (iv)(c), (vi), (viii) and (xi) of the
definition of
"Mortgage File", are in its possession, (ii) all documents
delivered or caused
to be delivered with respect to a Mortgage Loan by the applicable
Mortgage Loan
Seller constituting the related Mortgage File have been reviewed by
it and
appear regular on their face, appear to be executed and appear to
relate to such
Mortgage Loan, and (iii) based on such examination and only as to
the foregoing
documents, the information set forth in the Mortgage Loan Schedule
for such
Mortgage Loan with respect to the items specified in clauses (v)
and (vi)(c) of
the definition of "Mortgage Loan Schedule" is correct. Further,
with respect to
the documents described in clause (viii) of the definition of
Mortgage File,
absent actual knowledge of a Responsible Officer to the contrary or
copies of
UCC Financing Statements delivered to the Trustee as part of the
Mortgage File
indicating otherwise, the Trustee may assume, for purposes of the
certification
delivered in this Section 2.02(a), that the related Mortgage File
should include
one state-level UCC Financing Statement filing and one local UCC
Financing
Statement fixture filing for each Mortgaged Property (or with
respect to any
Mortgage Loan that has two or more Mortgagors, for each Mortgagor).
Amendments
with respect to the UCC Financing Statements to be assigned to the
Trust,
assigning such UCC Financing Statements to the Trust, will be
delivered on the
new national forms and in recordable form
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and will be filed in the state of incorporation or organization of
the related
Mortgagor as so indicated on the documents provided. If any
exceptions are noted
to the certification delivered to the above-mentioned recipients
substantially
in the form of Exhibit C, the Trustee shall, every 90 days after
the delivery of
such certification until the second anniversary of the Closing
Date, and every
180 days thereafter until the fifth anniversary of the Closing
Date, and
thereafter upon request by any party hereto, any Mortgage Loan
Seller or the
Plurality Subordinate Certificateholder, distribute an updated
exception report
to such recipients; provided that, by delivery of each such updated
exception
report, the Trustee shall be deemed to have made the certifications
provided for
in Exhibit C as to each Mortgage Loan or each applicable document
(that is to be
covered by a certification in the form of Exhibit C) in respect of
a Mortgage
Loan that, in each case, is not identified in such updated
exception report.
(b) None of the Trustee, the Fiscal Agent, the Master Servicer, the
Special
Servicer or any Custodian is under any duty or obligation to
inspect, review or
examine any of the documents, instruments, certificates or other
papers relating
to the Mortgage Loans delivered to it to determine that the same
are valid,
legal, effective, genuine, enforceable, in recordable form,
sufficient or
appropriate for the represented purpose or that they are other than
what they
purport to be on their face.
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of
Mortgage
Loans for Document Defects and Breaches of Representations
and Warranties.
(a) If any party hereto discovers (without implying any duty of
such Person
to make any inquiry) or receives notice that any document or
documents
constituting a part of a Mortgage File with respect to a Mortgage
Loan has not
been properly executed, is missing (beyond the time period required
for its
delivery hereunder), contains information that does not conform in
any material
respect with the corresponding information set forth in the
Mortgage Loan
Schedule, or does not appear to be regular on its face (each, a
"Document
Defect"), or discovers (without implying any duty of such Person to
make any
inquiry) or receives notice of a breach of any representation or
warranty
relating to any Mortgage Loan set forth in Schedule I of any
Mortgage Loan
Purchase Agreement (a "Breach"), the party discovering such
Document Defect or
Breach shall give written notice (which notice, in respect of any
obligation of
the Trustee to provide notice of a Document Defect, shall be deemed
given by the
delivery of the certificate as required by Section 2.02(a)) to the
applicable
Mortgage Loan Seller and the other parties hereto. The Trustee
shall then
promptly deliver such notice to the Controlling Class
Representative and to the
Rating Agencies of such Document Defect or Breach. Promptly upon
becoming aware
of any Document Defect or Breach (including through such written
notice provided
by any party hereto or the Controlling Class Representative as
provided above),
if any party hereto determines that such Document Defect or Breach
materially
and adversely affects the value of the affected Mortgage Loan or
the interests
of the Certificateholders therein, then such party shall notify the
Master
Servicer and, if the subject Mortgage Loan is a Specially Serviced
Mortgage
Loan, the Special Servicer, of such determination and, promptly
after receipt of
such notice, the Master Servicer or the Special Servicer, as
applicable, shall
request in writing that the applicable Mortgage Loan Seller, not
later than 90
days from receipt of such written request (or, in the case of a
Document Defect
or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within
the meaning of the REMIC Provisions, not later than 90 days after
any party to
this Agreement discovers such Document Defect or Breach) (i) cure
such Document
Defect or Breach, as the case may be, in accordance with Section
3(c) of the
related Mortgage Loan Purchase Agreement, (ii) repurchase the
affected Mortgage
Loan (which, for purposes of this clause (ii), shall include an REO
Loan) in
accordance with Section 3(c) of the related Mortgage Loan Purchase
Agreement, or
(iii) within two years of the Closing Date, substitute a Qualified
Substitute
Mortgage Loan for such affected Mortgage Loan (which, for purposes
of this
clause
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(iii), shall include an REO Loan) and pay the Master Servicer for
deposit into
the Collection Account any Substitution Shortfall Amount in
connection therewith
in accordance with Sections 3(c) and 3(d) of the related Mortgage
Loan Purchase
Agreement; provided, however, that if such Document Defect or
Breach is capable
of being cured but not within such 90-day period, such Document
Defect or Breach
does not relate to the Mortgage Loan not being treated as a
"qualified mortgage"
within the meaning of the REMIC Provisions, and the applicable
Mortgage Loan
Seller has commenced and is diligently proceeding with the cure of
such Document
Defect or Breach within such 90-day period, the applicable Mortgage
Loan Seller
shall have an additional 90 days to complete such cure (or, failing
such cure,
to repurchase or (subject to clause (iii) above) replace the
related Mortgage
Loan (which, for purposes of such repurchase or substitution, shall
include an
REO Loan)); and provided, further, with respect to such additional
90-day period
the applicable Mortgage Loan Seller shall have delivered an
Officer's
Certificate to the Trustee setting forth the reasons such Document
Defect or
Breach is not capable of being cured within the initial 90-day
period and what
actions the applicable Mortgage Loan Seller is pursuing in
connection with the
cure thereof and stating that the applicable Mortgage Loan Seller
anticipates
such Document Defect or Breach will be cured within the additional
90-day
period; and provided, further, that no Document Defect (other than
with respect
to a Specially Designated Mortgage Loan Document) shall be
considered to
materially and adversely affect the interests of the
Certificateholders or the
value of the related Mortgage Loan unless the document with respect
to which the
Document Defect exists is required in connection with an imminent
enforcement of
the mortgagee's rights or remedies under the related Mortgage Loan,
defending
any claim asserted by any Mortgagor or third party with respect to
the Mortgage
Loan, establishing the validity or priority of any lien on any
collateral
securing the Mortgage Loan or for any immediate servicing
obligations. In the
event of a Document Defect or Breach as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other
Mortgage Loans
(each a "Crossed Loan" and, collectively, a "Crossed Loan Group"),
and such
Document Defect or Breach does not constitute a Document Defect or
Breach, as
the case may be, as to any other Crossed Loan in such Crossed Loan
Group
(without regard to this paragraph) and is not cured as provided for
above, then
the applicable Document Defect or Breach, as the case may be, shall
be deemed to
constitute a Document Defect or Breach, as the case may be, as to
any other
Crossed Loan in the Crossed Loan Group for purposes of this
paragraph and the
related Mortgage Loan Seller shall be required to repurchase or
substitute for
all such Crossed Loans unless (1) the weighted average Debt Service
Coverage
Ratio for all the remaining related Crossed Loans for the four
calendar quarters
immediately preceding such repurchase or substitution is not less
than the
weighted average Debt Service Coverage Ratio for all such related
Crossed Loans,
including the affected Crossed Loan, for the four calendar quarters
immediately
preceding such repurchase or substitution, and (2) the weighted
average
Loan-to-Value Ratio for the remaining related Crossed Loans
determined at the
time of repurchase or substitution based upon an Appraisal obtained
by the
Special Servicer at the expense of the related Mortgage Loan Seller
shall not be
greater than the weighted average Loan-to-Value Ratio for all such
related
Crossed Loans, including the affected Crossed Loan determined at
the time of
repurchase or substitution based upon an Appraisal obtained by the
Special
Servicer at the expense of the related Mortgage Loan Seller;
provided that if
such criteria is satisfied and any Crossed Loan is not so
repurchased or
substituted, then such Crossed Loan shall be released from its
cross-collateralization and cross default provision so long as such
Crossed Loan
(that is not the Crossed Loan directly affected by the subject
Document Defect
or Breach) is held in the Trust Fund; and provided, further, that
the repurchase
or replacement of less than all such Crossed Loans and the release
from the
cross-collateralization and cross-default provision shall be
subject to the
delivery by the Mortgage Loan Seller to the Trustee, at the expense
of the
Mortgage Loan Seller, of an Opinion of Counsel to the effect that
such release
would not cause either of REMIC I or REMIC II to fail to qualify as
a REMIC
under the Code or result in the imposition of any tax on
"prohibited
transactions" or "contributions" after the Startup Day under the
REMIC
Provisions; and provided, further, that the Controlling Class
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Representative shall have consented to the repurchase or
replacement of the
affected Crossed Loan, which consent shall not be unreasonably
withheld. In the
event that one or more of such other Crossed Loans satisfy the
aforementioned
criteria, the related Mortgage Loan Seller may elect either to
repurchase or
substitute for only the affected Crossed Loan as to which the
related Document
Defect or Breach exists or to repurchase or substitute for all of
the Crossed
Loans in the related Crossed Loan Group. All documentation relating
to the
termination of the cross-collateralization provisions of each
Crossed Loan being
repurchased or replaced is to be prepared at the expense of the
applicable
Mortgage Loan Seller and, where required, with the consent of the
applicable
Mortgagor. For a period of two years from the Closing Date, so long
as there
remains any Mortgage File as to which there is any uncured Document
Defect and
so long as the applicable Mortgage Loan Seller shall provide the
Officer's
Certificate pursuant to Section 3(c) of the related Mortgage Loan
Purchase
Agreement, the Trustee shall on a quarterly basis prepare and
deliver
electronically to the other parties a written report as to the
status of such
uncured Document Defects as provided in Section 2.02(a). If the
affected
Mortgage Loan is to be repurchased or substituted, the Master
Servicer shall
designate the Collection Account as the account to which funds in
the amount of
the Purchase Price or the Substitution Shortfall Amount, as
applicable, are to
be wired. Any such repurchase or substitution of a Mortgage Loan
shall be on a
whole loan, servicing released basis.
Pursuant to each Mortgage Loan Purchase Agreement, to the extent
that the
related Mortgage Loan Seller is required to repurchase or
substitute for a
Crossed Loan thereunder while the Trustee continues to hold any
other Crossed
Loan(s) in the related Crossed Loan Group, the related Mortgage
Loan Seller and
the Depositor have agreed that neither such party shall enforce any
remedies
against the other party's Primary Collateral, but each is permitted
to exercise
remedies against the Primary Collateral securing the Crossed
Loan(s) held
thereby, so long as such exercise does not materially impair the
ability of the
other party to exercise its remedies against the Primary Collateral
securing the
Crossed Loan(s) held thereby. Notwithstanding the foregoing, each
Mortgage Loan
Seller and the Depositor have agreed that if the exercise by one
party would
materially impair the ability of the other party to exercise its
remedies with
respect to the Primary Collateral securing the Crossed Loan(s) held
by such
party, then each such party shall forbear from exercising such
remedies until
the Mortgage Loan documents evidencing and securing the relevant
Crossed Loans
can be modified in a manner consistent with the related Mortgage
Loan Purchase
Agreement to remove the threat of material impairment as a result
of the
exercise of remedies.
(b) In connection with any repurchase or substitution of one or
more
Mortgage Loans contemplated by this Section 2.03, upon receipt of a
Request for
Release (in the form of Exhibit D-1 attached hereto) of a Servicing
Officer of
the Master Servicer certifying as to the receipt of the applicable
Purchase
Price(s) in the Collection Account (in the case of any such
repurchase) or the
receipt of the applicable Substitution Shortfall Amount(s) in the
Collection
Account and upon the delivery of the Mortgage File(s) and the
Servicing File(s)
for the related Qualified Substitute Mortgage Loan(s) to the
Custodian and the
Master Servicer, respectively (in the case of any such
substitution), (i) the
Trustee shall execute and deliver such endorsements and assignments
as are
provided to it, in each case without recourse, representation or
warranty, as
shall be necessary to vest in the applicable Mortgage Loan Seller
the legal and
beneficial ownership of each repurchased Mortgage Loan or deleted
Mortgage Loan,
as applicable, being released pursuant to this Section 2.03, (ii)
the Trustee,
the Custodian, the Master Servicer, and the Special Servicer shall
each tender
to the applicable Mortgage Loan Seller, upon delivery to each of
them of a
receipt executed by the applicable Mortgage Loan Seller, all
portions of the
Mortgage File and other documents pertaining to each such Mortgage
Loan
possessed by it and (iii) the Master Servicer and the Special
Servicer shall
release to the applicable Mortgage Loan Seller any Escrow Payments
and Reserve
Funds held by it in respect of such repurchased or deleted Mortgage
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Loan; provided that such tender by the Trustee or the Custodian
shall be
conditioned upon its receipt from the Master Servicer or the
Special Servicer of
a Request for Release. Thereafter, the Trustee, the Fiscal Agent,
the Custodian,
the Master Servicer and the Special Servicer shall have no further
responsibility with regard to the related repurchased Mortgage
Loan(s) or
deleted Mortgage Loan(s), as applicable, and the related Mortgage
File(s) and
Servicing File(s). The Master Servicer shall, and is hereby
authorized and
empowered by the Trustee to, prepare, execute and deliver in its
own name, on
behalf of the Certificateholders and the Trustee or any of them,
the
endorsements and assignments contemplated by this Section 2.03, and
the Trustee
shall execute any powers of attorney that are prepared and
delivered to the
Trustee by the Master Servicer to permit the Master Servicer to do
so. The
Master Servicer shall indemnify the Trustee for any reasonable
costs, fees,
liabilities and expenses incurred by the Trustee in connection with
the
negligent or willful misuse by the Master Servicer of such powers
of attorney.
At the time a substitution is made, the applicable Mortgage Loan
Purchase
Agreement will provide that the applicable Mortgage Loan Seller
shall be
required to deliver the related Mortgage File to the Trustee and
certify that
the substitute Mortgage Loan is a Qualified Substitute Mortgage
Loan.
(c) No substitution of a Qualified Substitute Mortgage Loan may be
made in
any calendar month after the Determination Date for such month.
Periodic
Payments due with respect to any Qualified Substitute Mortgage Loan
after the
related date of substitution shall be part of REMIC I, as
applicable. No
substitution of a Qualified Substitute Mortgage Loan for a deleted
Mortgage Loan
shall be permitted under this Agreement if after such substitution,
the
aggregate of the Stated Principal Balances of all Qualified
Substitute Mortgage
Loans which have been substituted for deleted Mortgage Loans
exceeds 10% of the
aggregate Cut-off Date Balance of all the Mortgage Loans. Periodic
Payments due
with respect to any Qualified Substitute Mortgage Loan on or prior
to the
related date of substitution shall not be part of the Trust Fund or
REMIC I and
will (to the extent received by the Master Servicer) be remitted by
the Master
Servicer to the applicable Mortgage Loan Seller promptly following
receipt.
(d) The Mortgage Loan Purchase Agreements and Section 2.03(a) of
this
Agreement provide the sole remedies available to the
Certificateholders, or the
Trustee on behalf of the Certificateholders, respecting any
Document Defect or
Breach with respect to the Mortgage Loans purchased by the
Depositor thereunder.
(e) The Trustee with the cooperation of the Special Servicer (in
the case
of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the obligations of each Mortgage Loan
Seller under
Section 3 of the related Mortgage Loan Purchase Agreement.
Notwithstanding anything contained herein or the related Mortgage
Loan
Purchase Agreement, no delay in the discovery of a Defect or Breach
or delay on
the part of any party to this Agreement in providing notice of such
Defect or
Breach shall relieve the related Mortgage Loan Seller of its
obligations to
repurchase or substitute if it is otherwise required to do so under
the related
Mortgage Loan Purchase Agreement.
If the applicable Mortgage Loan Seller incurs any expense in
connection
with the curing of a Document Defect or a Breach which also
constitutes a
default under the related Mortgage Loan and is reimbursable
thereunder, such
Mortgage Loan Seller shall have a right, and shall be subrogated to
the rights
of the Trustee and the Trust Fund, as successor to the mortgagee,
to recover the
amount of such expenses from the related Mortgagor; provided,
however, that such
Mortgage Loan Seller's rights pursuant to this paragraph shall be
junior,
subject and subordinate to the rights of the Master Servicer,
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the Special Servicer, the Trustee, the Fiscal Agent and the Trust
Fund to
recover amounts owed by the related Mortgagor under the terms of
such Mortgage
Loan, including the rights to recover unreimbursed Advances,
accrued and unpaid
interest on Advances at the Reimbursement Rate and unpaid or
unreimbursed
expenses of the Trustee, the Fiscal Agent, the Trust Fund, the
Master Servicer
or the Special Servicer allocable to such Mortgage Loan. The Master
Servicer or,
with respect to a Specially Serviced Mortgage Loan, the Special
Servicer, at
such Mortgage Loan Seller's expense, shall use reasonable efforts
to recover
such expenses for such Mortgage Loan Seller to the extent
consistent with the
Servicing Standard, but taking into account the subordinate nature
of the
reimbursement to the Mortgage Loan Seller; provided, however, that
the Master
Servicer or, with respect to a Specially Serviced Mortgage Loan,
the Special
Servicer determines in the exercise of its sole discretion
consistent with the
Servicing Standard that such actions by it will not impair the
Master Servicer's
and/or the Special Servicer's collection or recovery of principal,
interest and
other sums due with respect to the related Mortgage Loan which
would otherwise
be payable to the Master Servicer, the Special Servicer, the
Trustee, the Fiscal
Agent and the Certificateholders pursuant to the terms of this
Agreement.
SECTION 2.04. Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the Trustee,
for its
own benefit and the benefit of the Certificateholders, and to the
Master
Servicer, the Special Servicer and the Fiscal Agent, as of the
Closing Date,
that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement
by the
Depositor, will not violate the Depositor's certificate of
incorporation or
bylaws or constitute a default (or an event which, with notice or
lapse of
time, or both, would constitute a default) under, or result in the
breach
of, any material agreement or other instrument to which it is a
party or
which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into
and
consummate all transactions contemplated by this Agreement, has
duly
authorized the execution, delivery and performance of this
Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal
and binding obligation of the Depositor, enforceable against the
Depositor
in accordance with the terms hereof, subject to (A) applicable
bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general
principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with
the
terms of this Agreement will not constitute a violation of, any
law, any
order or decree of any court or arbiter, or any order, regulation
or demand
of any federal, state or local governmental or regulatory
authority, which
violation, in the Depositor's good faith reasonable judgment, is
likely to
affect materially and adversely either the ability of the Depositor
to
perform its obligations under this Agreement or the financial
condition of
the Depositor.
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(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated
herein requires no regulatory approval, other than any such
approvals as
have been obtained, and is not subject to any bulk transfer or
similar law
in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined
adversely
to the Depositor, would prohibit the Depositor from entering into
this
Agreement or that, in the Depositor's good faith reasonable
judgment, is
likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the
financial
condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans to
the
Trust Fund pursuant to Section 2.01(a) of this Agreement (and
assuming that
the Mortgage Loan Sellers transferred to the Depositor good and
marketable
title to their respective Mortgage Loans free and clear of all
liens,
claims, encumbrances and other interests), (A) the Depositor had
good and
marketable title to, and was the sole owner and holder of, each
Mortgage
Loan; and (B) the Depositor has full right and authority to sell,
assign
and transfer the Mortgage Loans and all servicing rights pertaining
thereto.
(ix) The Depositor is transferring the Mortgage Loans to the Trust
Fund free and clear of any liens, pledges, charges and security
interests
created by or through the Depositor.
(b) The representations and warranties of the Depositor set forth
in
Section 2.04(a) shall survive the execution and delivery of this
Agreement and
shall inure to the benefit of the Persons for whose benefit they
were made for
so long as the Trust Fund remains in existence. Upon discovery by
any party
hereto of any breach of any of the foregoing representations and
warranties, the
party discovering such breach shall give prompt written notice
thereof to the
other parties.
SECTION 2.05. Conveyance of Mortgage Loans; Acceptance of REMIC I
by
Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution
and delivery of this Agreement, does hereby assign without recourse
all the
right, title and interest of the Depositor in and to the Mortgage
Loans (other
than Additional Interest) and the other property comprising REMIC I
to the
Trustee for the benefit of the Holders of the Class R-I
Certificates and REMIC
II as the holder of the REMIC I Regular Interests. The Trustee
acknowledges the
assignment to it of the Mortgage Loans and the other property
comprising REMIC
I, the Additional Interest and the other property comprising
Grantor Trust Z,
the Excess Servicing Strip and the other property comprising
Grantor Trust E,
and the Broker Strip and the other property comprising Grantor
Trust B, and
declares that it holds and will hold the same in trust for the
exclusive use and
benefit of: in the case of REMIC I, all present and future Holders
of the Class
R-I Certificates, REMIC II as the holder of the REMIC I Regular
Interests, in
the case of Grantor Trust Z, all present and future holders of the
Class Z
Certificates, in the case of Grantor Trust E, all present and
future holders of
the Excess Servicing Strip, and in the case of Grantor Trust B, all
present and
future holders of the Broker Strip.
SECTION 2.06. Execution, Authentication and Delivery of Class R-I
Certificates.
The Certificate Registrar, pursuant to the written request of the
Depositor
executed by an officer of the Depositor, has executed, and the
Authenticating
Agent has authenticated and delivered to
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or upon the order of the Depositor, in exchange for the assets
included in REMIC
I, the Class R-I Certificates in authorized denominations.
SECTION 2.07. Conveyance of REMIC I Regular Interests; Acceptance
of
REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution
and delivery of this Agreement, does hereby assign without recourse
all the
right, title and interest of the Depositor in and to the REMIC I
Regular
Interests to the Trustee for the benefit of the respective Holders
of the REMIC
II Certificates. The Trustee acknowledges the assignment to it of
the REMIC I
Regular Interests and declares that it holds and will hold the same
in trust for
the exclusive use and benefit of all present and future Holders of
the REMIC II
Certificates.
SECTION 2.08. Execution, Authentication and Delivery of REMIC II
Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular
Interests and in exchange therefor, and pursuant to the written
request of the
Depositor, executed by an officer of the Depositor, the Certificate
Registrar,
has executed, and the Authenticating Agent, has authenticated and
delivered to
or upon the order of the Depositor, the REMIC II Certificates in
authorized
denominations evidencing the entire beneficial ownership of REMIC
II. The rights
of the holders of the respective Classes of REMIC II Certificates
to receive
distributions from the proceeds of REMIC II in respect of their
REMIC II
Certificates, and all ownership interests evidenced or constituted
by the
respective Classes of REMIC II Certificates in such distributions,
shall be as
set forth in this Agreement.
SECTION 2.09. Execution, Authentication and Delivery of Class Z
Certificates.
Concurrently with the assignment to it of the Additional Interest
and in
exchange therefor, the Trustee, pursuant to the written request of
the Depositor
executed by an officer of the Depositor, has executed, as
Certificate Registrar,
authenticated, as Authenticating Agent, and delivered to or upon
the order of
the Depositor, the Class Z Certificates.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and
administer the Mortgage Loans that each is obligated to service and
administer
pursuant to this Agreement on behalf of the Trustee, for the
benefit of the
Certificateholders in accordance with any and all applicable laws,
the terms of
this Agreement, the terms of the respective Mortgage Loans and, to
the extent
consistent with the foregoing, in accordance with the Servicing
Standard.
Without limiting the foregoing, and subject to Section 3.21, (i)
the Master
Servicer shall service and administer all Mortgage Loans that are
not Specially
Serviced Mortgage Loans, and (ii) the Special Servicer shall
service and
administer each Specially Serviced Mortgage Loan and REO Property
and shall
render such services with respect to all Mortgage Loans and REO
Properties as
are specifically provided for herein; provided that the Master
Servicer shall
continue to receive payments, and prepare, or cause to be prepared,
all reports
required hereunder, except for the reports specified herein as
prepared by the
Special Servicer, with respect to the Specially Serviced Mortgage
Loans as if no
Servicing Transfer Event had occurred and with respect to the REO
Properties
(and the related REO Loans) as if no REO Acquisition had occurred,
and to render
such incidental services with respect to the Specially Serviced
Mortgage Loans
and REO Properties as are specifically provided for herein;
provided further,
however, that the Master Servicer shall not be liable for its
failure to comply
with such duties insofar as such failure results from a failure by
the Special
Servicer to provide sufficient information to the Master Servicer
to comply with
such duties or failure by the Special Servicer to otherwise comply
with its
obligations hereunder. All references herein to the respective
duties of the
Master Servicer and the Special Servicer, and to the areas in which
they may
exercise discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a) and Section 6.11, the Master
Servicer and
the Special Servicer each shall have full power and authority,
acting alone (or,
pursuant to Section 3.22, through one or more Sub-Servicers), to do
or cause to
be done any and all things in connection with such servicing and
administration
which it may deem necessary or desirable. Without limiting the
generality of the
foregoing, each of the Master Servicer and the Special Servicer, in
its own
name, with respect to each of the Mortgage Loans it is obligated to
service
hereunder, is hereby authorized and empowered by the Trustee to
execute and
deliver on behalf of the Certificateholders and the Trustee, (i)
any and all
financing statements, continuation statements and other documents
or instruments
necessary to maintain the lien created by any Mortgage or other
security
document in the related Mortgage File on the related Mortgaged
Property and
related collateral; (ii) in accordance with the Servicing Standard
and subject
to Section 3.20 and Section 6.11, any and all modifications,
waivers, amendments
or consents to or with respect to any documents contained in the
related
Mortgage File; (iii) any and all instruments of satisfaction or
cancellation, or
of partial or full release, discharge, or assignment, and all other
comparable
instruments; and (iv) pledge agreements and other defeasance
documents in
connection with a defeasance contemplated pursuant to Section
3.20(i). Subject
to Section 3.10, the Trustee shall, at the written request of the
Master
Servicer or the Special Servicer, promptly execute any limited
powers of
attorney and other documents furnished by the Master Servicer or
the Special
Servicer that are necessary or appropriate to enable them to carry
out their
servicing and administrative duties hereunder; provided, however,
that the
Trustee shall not be held liable for any misuse of any such power
of attorney by
the Master Servicer or the Special Servicer. Notwithstanding
anything contained
herein to the contrary,
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neither the Master Servicer nor the Special Servicer shall without
the Trustee's
written consent: (i) initiate any action, suit or proceeding solely
under the
Trustee's name without indicating the Master Servicer's or Special
Servicer's as
applicable, representative capacity; or (ii) take any action with
the intent to
cause, and that actually does cause, the Trustee to be registered
to do business
in any state.
(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the
parties to be
that of an independent contractor and not that of a joint venture
or partner or
agent. Unless the same Person acts as both Master Servicer and
Special Servicer,
the Master Servicer shall not be responsible for the actions of or
failure to
act by the Special Servicer and the Special Servicer shall not be
responsible
for the actions of or the failure to act by the Master Servicer.
(d) Neither the Master Servicer nor the Special Servicer shall have
any
liability for the failure of any Mortgage Loan Seller to perform
its obligations
under the related Mortgage Loan Purchase Agreement.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall
undertake
reasonable efforts consistent with the Servicing Standard to
collect all
payments required under the terms and provisions of the Mortgage
Loans it is
obligated to service hereunder and shall, to the extent such
procedures shall be
consistent with this Agreement, follow such collection procedures
in accordance
with the Servicing Standard; provided that with respect to the
Mortgage Loans
that have Anticipated Repayment Dates, so long as the related
Mortgagor is
otherwise in compliance with each provision of the related Mortgage
Loan
documents, the Master Servicer and Special Servicer (including the
Special
Servicer in its capacity as a Certificateholder), shall not take
any enforcement
action with respect to the failure of the related Mortgagor to make
any payment
of Additional Interest or principal in excess of the principal
component of the
constant Periodic Payment, other than requests for collection,
until the
maturity date of the related Mortgage Loan; provided that the
Master Servicer or
Special Servicer, as the case may be, may take action to enforce
the Trust
Fund's right to apply excess cash flow to principal in accordance
with the terms
of the Mortgage Loan documents. The Master Servicer may, in its
discretion, with
respect to Mortgage Loans that have Anticipated Repayment Dates,
waive any or
all of the Additional Interest accrued on any such Mortgage Loan if
the
Mortgagor is ready and willing to pay all other amounts due under
such Mortgage
Loan in full, including the Stated Principal Balance, provided that
it acts in
accordance with the Servicing Standard and it has received the
consent of the
Special Servicer and the Controlling Class Representative (which
consent will be
deemed granted if not denied in writing within 10 Business Days
after the
Special Servicer's receipt of the Master Servicer's request for
such consent),
and neither the Master Servicer nor the Special Servicer will have
any liability
to the Trust Fund, the Certificateholders or any other person for
any
determination that is made in accordance with the Servicing
Standard. The Master
Servicer, with regard to a Mortgage Loan that is not a Specially
Serviced
Mortgage Loan, may waive any Default Charges in connection with any
payment on
such Mortgage Loan (but not more than three times during any period
of 24
consecutive months without the consent of the Controlling Class
Representative).
(b) All amounts collected in respect of any Mortgage Loan in the
form of
payments from Mortgagors, Liquidation Proceeds (insofar as such
Liquidation
Proceeds are of the nature described in clauses (i) through (iii)
of the
definition thereof) or Insurance Proceeds shall be applied to
either amounts due
and owing under the related Mortgage Note, loan agreement (if any)
and Mortgage
(including, without limitation, for principal and accrued and
unpaid interest)
in accordance with the
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express provisions of the related Mortgage Note, loan agreement (if
any) and
Mortgage, except as otherwise provided herein or, if required
pursuant to the
express provisions of the related Mortgage or, as determined by the
Master
Servicer or Special Servicer in accordance with the Servicing
Standard, to the
repair or restoration of the related Mortgaged Property, and, in
the absence of
such express provisions, shall be applied (after reimbursement or
payment, first
to the Trustee and the Fiscal Agent, and second to the Master
Servicer or
Special Servicer, as applicable, for any unpaid Master Servicing
Fee, Special
Servicing Fee, Principal Recovery Fee, liquidation expenses and
related
Additional Trust Fund Expenses) for purposes of this Agreement:
first, in
connection with Liquidation Proceeds or Insurance Proceeds as a
recovery of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts
that were paid
from principal collections on the Mortgage Loan (including
Unliquidated
Advances) and resulted in principal distributed to the
Certificateholders being
reduced; second, as a recovery of any related and unreimbursed
Advances plus
unreimbursed interest accrued thereon; third, as a recovery of
accrued and
unpaid interest at the related Mortgage Rate (net of the Master
Servicing Fee
Rate) on such Mortgage Loan, to the extent such amounts have not
been previously
advanced, and exclusive of any portion thereof that constitutes
Additional
Interest; fourth, as a recovery of principal of such Mortgage Loan
then due and
owing, to the extent such amounts have not been previously
advanced, including,
without limitation, by reason of acceleration of the Mortgage Loan
following a
default thereunder; fifth, as a recovery of Default Charges; sixth,
in
accordance with the normal servicing practices of the Master
Servicer, as a
recovery of any other amounts then due and owing under such
Mortgage Loan (other
than Additional Interest), including, without limitation,
Prepayment Premiums
and Yield Maintenance Charges; seventh, as a recovery of any
remaining principal
of such Mortgage Loan to the extent of its entire remaining unpaid
principal
balance; and eighth, with respect to any ARD Loan after its
Anticipated
Repayment Date, as a recovery of any unpaid Additional Interest.
All amounts
collected on any Mortgage Loan in the form of Liquidation Proceeds
of the nature
described in clauses (iv) through (viii) of the definition thereof
shall be
deemed to be applied (after reimbursement or payment first to the
Fiscal Agent,
second to the Trustee and third to the Master Servicer or Special
Servicer, as
applicable, for any unpaid Master Servicing Fee, Special Servicing
Fee,
Principal Recovery Fee, liquidation expenses and related Additional
Trust Fund
Expenses): first, as a recovery of any related and unreimbursed
Advances plus
interest accrued thereon; second, as a recovery of accrued and
unpaid interest
at the related Mortgage Rate (net of the Master Servicing Fee Rate)
on such
Mortgage Loan to but not including the Due Date in the Collection
Period of
receipt, to the extent such amounts have not been previously
advanced, and
exclusive of any portion thereof that constitutes Additional
Interest; third, as
a recovery of principal, to the extent such amounts have not been
previously
advanced, of such Mortgage Loan to the extent of its entire unpaid
principal
balance; and fourth, with respect to any ARD Loan after its
Anticipated
Repayment Date, as a recovery of any unpaid Additional Interest.
Amounts
collected on any REO Loan shall be deemed to be applied in
accordance with the
definition thereof. The provisions of this paragraph with respect
to the
application of amounts collected on any Mortgage Loan shall not
alter in any way
the right of the Master Servicer, the Special Servicer or any other
Person to
receive payments from the Collection Account as set forth in
clauses (ii)
through (xiv) and (xvi) of Section 3.05(a) from amounts so applied.
(c) To the extent consistent with the terms of the related Mortgage
Loan
and applicable law, the Master Servicer shall apply all Insurance
Proceeds and
condemnation proceeds it receives on a day other than the Due Date
to amounts
due and owing under the related Mortgage Loan as if such Insurance
Proceeds and
condemnation proceeds were received on the Due Date immediately
succeeding the
month in which such Insurance Proceeds and condemnation proceeds
were received.
(d) In the event that the Master Servicer or Special Servicer
receives
Additional Interest in any Collection Period, or receives notice
from the
related Mortgagor that the Master Servicer
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or Special Servicer will be receiving Additional Interest in any
Collection
Period, the Master Servicer or Special Servicer, as applicable,
will, to the
extent not included in the related CMSA Loan Periodic Update File,
promptly
notify the Trustee. Subject to the provisions of Section 3.02(a)
hereof, none of
the Master Servicer, the Trustee, the Fiscal Agent or the Special
Servicer shall
be responsible for any such Additional Interest not collected after
notice from
the related Mortgagor.
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of
credit related to
obtaining certain performance objectives described in the
applicable Mortgage
Loan documents, the Master Servicer (with the consent of the
Special Servicer),
to the extent the Mortgage Loan documents provide for any
discretion, with
respect to non-Specially Serviced Mortgage Loans, or the Special
Servicer, with
respect to Specially Serviced Mortgage Loans shall, to the extent
consistent
with the Servicing Standard, hold such escrows, letters of credit
and proceeds
thereof as additional collateral and not apply such items to reduce
the
principal balance of such Mortgage Loan unless otherwise required
to do so
pursuant to the applicable Mortgage Loan documents, applicable law
or the
Servicing Standard.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing
Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans establish
and
maintain one or more accounts (the "Servicing Accounts"), into
which all Escrow
Payments shall be deposited and retained, and shall administer such
accounts in
accordance with the terms of the Mortgage Loan documents. Each
Servicing Account
with respect to a Mortgage Loan shall be an Eligible Account unless
not
permitted by the terms of the applicable Mortgage Loan documents.
Withdrawals of
amounts so collected from a Servicing Account may be made (to the
extent of
amounts on deposit therein in respect of the related Mortgage Loan
or, in the
case of clauses (iv) and (v) below, to the extent of interest or
other income
earned on such amounts) only for the following purposes: (i)
consistent with the
related Mortgage Loan documents, to effect the payment of real
estate taxes,
assessments, insurance premiums (including premiums on any
environmental
insurance policy), ground rents (if applicable) and comparable
items in respect
of the respective Mortgaged Properties; (ii) insofar as the
particular Escrow
Payment represents a late payment that was intended to cover an
item described
in the immediately preceding clause (i) for which a Servicing
Advance was made,
to reimburse the Master Servicer, the Special Servicer, the Trustee
or the
Fiscal Agent, as applicable, for any such Servicing Advance
(provided that any
interest thereon may only be withdrawn from the Collection
Account), (iii) to
refund to Mortgagors any sums as may be determined to be overages;
(iv) to pay
interest, if required and as described below, to Mortgagors on
balances in the
respective Servicing Accounts; (v) to pay the Master Servicer
interest and
investment income on balances in the Servicing Accounts as
described in Section
3.06(b), if and to the extent not required by law or the terms of
the related
Mortgage Loan documents to be paid to the Mortgagor; (vi) during an
event of
default under the related Mortgage Loan, for any other purpose
permitted by the
related Mortgage Loan documents, applicable law and the Servicing
Standard;
(vii) to withdraw amounts deposited in error; (viii) to clear and
terminate the
Servicing Accounts at the termination of this Agreement in
accordance with
Section 9.01; or (ix) only as, when and to the extent permitted
under the
Mortgage Loan documents, to effect payment of accrued and unpaid
late charges,
default interest and other reasonable fees. To the extent permitted
by law or
the applicable Mortgage Loan documents, funds in the Servicing
Accounts may be
invested only in Permitted Investments in accordance with the
provisions of
Section 3.06 and in accordance with the terms of the related
Mortgage Loan
documents. The Master Servicer shall pay or cause to be paid to the
Mortgagors
interest, if any, earned on the investment of funds in the related
Servicing
Accounts maintained thereby, if required by law or the terms of the
related
Mortgage Loan. If the Master Servicer shall deposit in a Servicing
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Account any amount not required to be deposited therein, it may at
any time
withdraw such amount from such Servicing Account, any provision
herein to the
contrary notwithstanding. The Servicing Accounts shall not be
considered part of
the segregated pool of assets constituting REMIC I, REMIC II,
Grantor Trust Z,
Grantor Trust E or Grantor Trust B.
(b) The Master Servicer (or the Special Servicer for Specially
Serviced
Mortgage Loans and REO Loans) shall (i) maintain accurate records
with respect
to the related Mortgaged Property reflecting the status of real
estate taxes,
assessments and other similar items that are or may become a lien
thereon and
the status of insurance premiums and any ground rents payable in
respect thereof
and (ii) use reasonable efforts to obtain, from time to time, all
bills for (or
otherwise confirm) the payment of such items (including renewal
premiums) and,
if the subject Mortgage Loan required the related Mortgagor to
escrow for such
items, shall effect payment thereof prior to the applicable penalty
or
termination date and, in any event, prior to the institution of
foreclosure or
similar proceedings with respect to the related Mortgaged Property
for
nonpayment of such items. For purposes of effecting any such
payment for which
it is responsible, the Master Servicer shall apply Escrow Payments
(at the
direction of the Special Servicer for Specially Serviced Mortgage
Loans and REO
Loans) as allowed under the terms of the related Mortgage Loan or,
if such
Mortgage Loan does not require the related Mortgagor to escrow for
the payment
of real estate taxes, assessments, insurance premiums, ground rents
(if
applicable) and similar items, the Master Servicer shall, as to all
Mortgage
Loans, use reasonable efforts consistent with the Servicing
Standard to cause
the Mortgagor to comply with the requirement of the related
Mortgage that the
Mortgagor make payments in respect of such items at the time they
first become
due, and, in any event, prior to the institution of foreclosure or
similar
proceedings with respect to the related Mortgaged Property for
nonpayment of
such items.
(c) The Master Servicer shall, as to all Mortgage Loans, make a
Servicing
Advance with respect to the related Mortgaged Property in an amount
equal to all
such funds as are necessary for the purpose of effecting the
payment of the
costs and expenses described in the definition of "Servicing
Advances", provided
that the Master Servicer shall not make any Servicing Advance prior
to the
penalty date or cancellation date, as applicable, if the Master
Servicer
reasonably anticipates in accordance with the Servicing Standard
that the
Mortgagor will pay such amount on or before the penalty date or
cancellation
date, and provided, further, that the Master Servicer shall not be
obligated to
make any Servicing Advance that would, if made, constitute a
Nonrecoverable
Servicing Advance. All such Servicing Advances shall be
reimbursable in the
first instance from related collections from the Mortgagors, and in
the case of
REO Properties, from the operating revenues related thereto, and
further as
provided in Section 3.05(a). No costs incurred by the Master
Servicer in
effecting the payment of real estate taxes, assessments and, if
applicable,
ground rents on or in respect of such Mortgaged Properties shall,
for purposes
of this Agreement, including, without limitation, the Trustee's
calculation of
monthly distributions to Certificateholders, be added to the unpaid
Stated
Principal Balances of the related Mortgage Loans, notwithstanding
that the terms
of such Mortgage Loans so permit. The foregoing shall in no way
limit the Master
Servicer's ability to charge and collect from the Mortgagor such
costs together
with interest thereon.
The Special Servicer shall give the Master Servicer, the Trustee
and the
Fiscal Agent not less than five Business Days' notice with respect
to Servicing
Advances to be made on any Specially Serviced Mortgage Loan or REO
Property,
before the date on which the Master Servicer is required to make
any Servicing
Advance with respect to a given Mortgage Loan or REO Property;
provided,
however, that the Special Servicer may (without implying any duty
to do so) make
any Servicing Advance on a Specially Serviced Mortgage Loan or REO
Property only
as may be required on an urgent or emergency basis. In addition,
the Special
Servicer shall provide the Master Servicer, the Trustee and
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the Fiscal Agent with such information in its possession as the
Master Servicer,
the Trustee or the Fiscal Agent, as applicable, may reasonably
request to enable
the Master Servicer, the Trustee or the Fiscal Agent, as
applicable, to
determine whether a requested Servicing Advance would constitute a
Nonrecoverable Servicing Advance. The Special Servicer shall not be
entitled to
deliver such a notice (other than for emergency Servicing Advances)
more
frequently than once per calendar month (although such notice may
relate to more
than one Servicing Advance). The Master Servicer will have the
obligation to
make any such Servicing Advance (other than a Nonrecoverable
Servicing Advance)
that it is so requested by a Special Servicer to make, within five
Business Days
after the Master Servicer's receipt of such request. If the request
is timely
and properly made, the Special Servicer shall be relieved of any
obligations
with respect to a Servicing Advance that it so requests the Master
Servicer to
make with respect to any Specially Serviced Mortgage Loan or REO
Property
(regardless of whether or not the Master Servicer shall make such
Servicing
Advance). The Master Servicer shall be entitled to reimbursement
for any
Servicing Advance made by it at the direction of a Special
Servicer, together
with interest accrued thereon, at the same time, in the same manner
and to the
same extent as the Master Servicer is entitled with respect to any
other
Servicing Advances made thereby. Any request by the Special
Servicer that the
Master Servicer make a Servicing Advance shall be deemed to be a
determination
by the Special Servicer that such requested Servicing Advance is
not a
Nonrecoverable Servicing Advance, and the Master Servicer shall be
entitled to
conclusively rely on such determination. On the fourth Business Day
before each
Distribution Date, the Special Servicer shall report to the Master
Servicer the
Special Servicer's determination as to whether any Servicing
Advance previously
made with respect to a Specially Serviced Mortgage Loan or REO Loan
is a
Nonrecoverable Servicing Advance. The Master Servicer shall be
entitled to
conclusively rely on such a determination.
No later than 1:00 p.m. (New York City time) on the first
Determination
Date that follows the date on which it makes any Servicing Advance,
the Special
Servicer shall provide the Master Servicer an Officer's Certificate
(via
facsimile) setting forth the details of the Servicing Advance, upon
which the
Master Servicer may conclusively rely in reimbursing the Special
Servicer. The
Master Servicer shall be obligated, out of its own funds, to
reimburse the
Special Servicer for any unreimbursed Servicing Advances (other
than
Nonrecoverable Servicing Advances) made by the Special Servicer
together with
interest thereon at the Reimbursement Rate from the date made to,
but not
including, the date of reimbursement. Any such reimbursement,
together with any
accompanying payment of interest, shall be made by the Master
Servicer, by wire
transfer of immediately available funds to an account designated by
the Special
Servicer, no later than the first P&I Advance Date that is at
least three (3)
Business Days after the date on which the Master Servicer receives
the
corresponding Officer's Certificate contemplated by the prior
sentence; provided
that any such Officer's Certificate received after 1:00 p.m. (New
York City
time), on any particular date shall, for purposes of any such
reimbursement, be
deemed received on the next succeeding Business Day. Upon its
reimbursement to
the Special Servicer of any Servicing Advance and payment to the
Special
Servicer of interest thereon, the Master Servicer shall for all
purposes of this
Agreement be deemed to have made such Servicing Advance at the same
time as the
Special Servicer actually made such Servicing Advance, and
accordingly, the
Master Servicer shall be entitled to reimbursement for such
Servicing Advance,
together with interest accrued thereon, at the same time, in the
same manner and
to the same extent as the Master Servicer would otherwise have been
entitled if
it had actually made such Servicing Advance at the time the Special
Servicer
did.
Notwithstanding the foregoing provisions of this Section 3.03(c),
the
Master Servicer shall not be required to reimburse the Special
Servicer for, or
to make at the direction of the Special Servicer, any Servicing
Advance if the
Master Servicer determines in its reasonable judgment that such
Servicing
Advance, although not characterized by the Special Servicer as a
Nonrecoverable
Servicing
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Advance, is in fact a Nonrecoverable Servicing Advance. The Master
Servicer
shall notify the Special Servicer in writing of such determination
and, if
applicable, such Nonrecoverable Servicing Advance shall be
reimbursed to the
Special Servicer pursuant to Section 3.05(a).
If the Master Servicer is required under any provision of this
Agreement
(including, but not limited to, this Section 3.03(c)) to make a
Servicing
Advance, but does not do so within 15 days after such Advance is
required to be
made, the Trustee shall, if a Responsible Officer of the Trustee
has actual
knowledge of such failure on the part of the Master Servicer, give
written
notice of such failure to the Master Servicer. If such Servicing
Advance is not
made by the Master Servicer within five Business Days after such
notice then
(subject to a determination that such Servicing Advance would not
be a
Nonrecoverable Servicing Advance) the Trustee shall make such
Servicing Advance.
If the Trustee does not make such Servicing Advance within such
period, the
Fiscal Agent shall make such Servicing Advance within such period.
Any failure
by the Master Servicer to make a Servicing Advance hereunder shall
constitute an
Event of Default by the Master Servicer subject to and as provided
in Section
7.01.
(d) In connection with its recovery of any Servicing Advance from
the
Collection Account pursuant to Section 3.05(a), each of the Master
Servicer, the
Special Servicer, the Trustee and the Fiscal Agent shall be
entitled to receive,
out of amounts then on deposit in the Collection Account as
provided in Section
3.05(a), any unpaid interest at the Reimbursement Rate in effect
from time to
time, accrued on the amount of such Servicing Advance (to the
extent made with
its own funds) from the date made to but not including the date of
reimbursement, such interest to be payable: first, out of Default
Charges
received on the related Mortgage Loans and REO Properties during
the Collection
Period in which such reimbursement is made, and to the extent that
such Default
Charges are insufficient, but only after or at the same time the
related Advance
has been or is reimbursed pursuant to this Agreement, then from
general
collections on the Mortgage Pool then on deposit in the Collection
Account.
Subject to any exercise of the option to defer reimbursement for
Advances
pursuant to Section 4.03(e), the Master Servicer shall reimburse
itself, the
Special Servicer, Trustee or the Fiscal Agent, as applicable, for
any
outstanding Servicing Advance made thereby as soon as practicable
after funds
available for such purpose have been received by the Master
Servicer, and in no
event shall interest accrue in accordance with this Section 3.03(d)
on any
Servicing Advance as to which the corresponding Escrow Payment or
other similar
payment by the Mortgagor was received by the Master Servicer on or
prior to the
date the related Servicing Advance was made.
(e) The determination by the Master Servicer or the Special
Servicer that
either has made a Nonrecoverable Servicing Advance or that any
proposed
Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance,
shall be made in accordance with the Servicing Standard and shall
be evidenced
by an Officer's Certificate delivered promptly to the Trustee, the
Fiscal Agent,
the Depositor, setting forth the basis for such determination,
together with a
copy of any Appraisal (the cost of which may be paid out of the
Collection
Account pursuant to Section 3.05(a)) of the related Mortgaged
Property or REO
Property, as the case may be; which Appraisal shall be obtained
pursuant to
Section 3.09(a) by the Master Servicer, or by or on behalf of the
Special
Servicer if the Mortgage Loan is a Defaulted Mortgage Loan (or, if
no such
Appraisal has been performed, a copy of an Appraisal of the related
Mortgaged
Property or REO Property, performed within the twelve months
preceding such
determination and the party delivering such appraisal has no actual
knowledge of
a material adverse change in the condition of the related Mortgaged
Property
that would draw into question the applicability of such Appraisal)
and further
accompanied by related Mortgagor operating statements and financial
statements,
budgets and rent rolls of the related Mortgaged Property and any
engineers'
reports, environmental surveys or similar reports that the Master
Servicer or
the Special
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Servicer may have obtained and that support such determination. The
Trustee and
the Fiscal Agent shall be entitled to rely, conclusively, on any
determination
by the Master Servicer or the Special Servicer that a Servicing
Advance, if
made, would be a Nonrecoverable Advance; provided, however, that if
the Master
Servicer has failed to make a Servicing Advance for reasons other
than a
determination by the Master Servicer that such Servicing Advance
would be a
Nonrecoverable Advance, the Trustee or the Fiscal Agent shall make
such
Servicing Advance within the time periods required by Section
3.03(c) unless the
Trustee or the Fiscal Agent in good faith makes a determination
that such
Servicing Advance would be a Nonrecoverable Advance. The applicable
Person shall
consider Unliquidated Advances in respect of prior Servicing
Advances as
outstanding Advances for purposes of recoverability determinations
as if such
Unliquidated Advance were a Servicing Advance.
(f) The Master Servicer shall, as to all Mortgage Loans, establish
and
maintain, as applicable, one or more accounts (the "Reserve
Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained.
Withdrawals of
amounts so deposited may be made (i) to pay for, or to reimburse
the related
Mortgagor in connection with, the related environmental
remediation, repairs
and/or capital improvements at the related Mortgaged Property if
the repairs
and/or capital improvements have been completed, and such
withdrawals are made
in accordance with the Servicing Standard and the terms of the
related Mortgage
Note, Mortgage and any agreement with the related Mortgagor
governing such
Reserve Funds and any other items for which such Reserve Funds were
intended
pursuant to the loan documents, (ii) to pay the Master Servicer
interest and
investment income earned on amounts in the Reserve Accounts if
permitted under
the related Mortgage Loan documents and (iii) during an event of
default under
the related Mortgage Loan, for any other purpose permitted by the
related
Mortgage Loan documents, applicable law and the Servicing Standard.
To the
extent permitted in the applicable Mortgage Loan documents, funds
in the Reserve
Accounts to the extent invested may be only invested in Permitted
Investments in
accordance with the provisions of Section 3.06. All Reserve
Accounts shall be
Eligible Accounts. The Reserve Accounts shall not be considered
part of the
segregated pool of assets comprising REMIC I, REMIC II, Grantor
Trust Z, Grantor
Trust E or Grantor Trust B. Consistent with the Servicing Standard,
the Master
Servicer may waive or extend the date set forth in any agreement
governing such
Reserve Funds by which the required repairs and/or capital
improvements at the
related Mortgaged Property must be completed.
(g) Notwithstanding anything to the contrary in this Agreement, but
subject
to the limitations on reimbursements in Section 4.03, the Master
Servicer may
(and, at the direction of the Special Servicer if a Specially
Serviced Mortgage
Loan or an REO Property is involved, shall) pay directly out of the
Collection
Account any servicing expense that, if paid by the Master Servicer
or the
Special Servicer, would constitute a Nonrecoverable Servicing
Advance for the
subject Mortgage Loan or REO Property; provided that the Master
Servicer (or the
Special Servicer, if a Specially Serviced Mortgage Loan or an REO
Property is
involved) has determined in accordance with the Servicing Standard
that making
such payment is in the best interests of the Certificateholders (as
a collective
whole), as evidenced by an Officer's Certificate delivered promptly
to the
Depositor, the Trustee and the Controlling Class Representative,
setting forth
the basis for such determination and accompanied by any information
that such
Person may have obtained that supports such determination. The
Master Servicer
and the Special Servicer shall deliver a copy of any such Officer's
Certificate
(and accompanying information) promptly to the other such Person.
(h) To the extent an operations and maintenance plan is required to
be
established and executed pursuant to the terms of a Mortgage Loan,
the Master
Servicer shall request from the Mortgagor written confirmation
thereof within a
reasonable time after the later of the Closing Date and the date as
of which
such plan is required to be established or completed. To the extent
any repairs,
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capital improvements, actions or remediations are required to have
been taken or
completed pursuant to the terms of the Mortgage Loan, the Master
Servicer shall
request from the Mortgagor written confirmation of such actions and
remediations
within a reasonable time after the later of the Closing Date and
the date as of
which such action or remediations are required to be or to have
been taken or
completed. To the extent a Mortgagor shall fail to promptly respond
to any
inquiry described in this Section 3.03(h), the Master Servicer
shall determine
whether the Mortgagor has failed to perform its obligations under
the respective
Mortgage Loan and report any such failure to the Special Servicer
within a
reasonable time after the date as of which such operations and
maintenance plan
is required to be established or executed or the date as of which
such actions
or remediations are required to be or to have been taken or
completed.
SECTION 3.04. Collection Account, Interest Reserve Account,
Additional
Interest Account, Distribution Account and Gain-on-Sale
Reserve Account.
(a) The Master Servicer shall establish and maintain one or more
accounts
(collectively, the "Collection Account"), held on behalf of the
Trustee in trust
for the benefit of the Certificateholders. The Collection Account
shall be an
Eligible Account. The Master Servicer shall deposit or cause to be
deposited in
the Collection Account, within one Business Day of receipt of
available funds
(in the case of payments by Mortgagors or other collections on the
Mortgage
Loans) or as otherwise required hereunder, the following payments
and
collections received or made by the Master Servicer or on its
behalf subsequent
to the Cut-off Date (other than in respect of principal and
interest on the
Mortgage Loans due and payable on or before the Cut-off Date, which
payments
shall be delivered promptly to the applicable Mortgage Loan Seller
or its
designee, with negotiable instruments endorsed as necessary and
appropriate
without recourse), other than amounts received from Mortgagors
which are to be
used to purchase defeasance collateral, or payments (other than
Principal
Prepayments) received by it on or prior to the Cut-off Date but
allocable to a
period subsequent thereto:
(i) all payments on account of principal of the Mortgage Loans
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
including Additional Interest and Penalty Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of the Mortgage Loans;
(iv) all Insurance Proceeds and Liquidation Proceeds (other than
Gain-on-Sale Proceeds) received in respect of any Mortgage Loan,
and
together with any amounts representing recoveries of
Workout-Delayed
Reimbursement Amounts and/or Nonrecoverable Advances in respect of
the
related Mortgage Loans, in each case to the extent not otherwise
required
to be applied to the restoration of the Mortgaged Property or
released to
the related Mortgagor;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with
respect to
Permitted Investments of funds held in the Collection Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with
losses
resulting from a deductible clause in a blanket hazard policy;
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(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.16(c);
(viii) any amount in respect of Purchase Prices and Substitution
Shortfall Amounts pursuant to Section 2.03(b);
(ix) any amount required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls; and
(x) any amount paid by a Mortgagor to cover items for which a
Servicing Advance has been previously made, and payments collected
in
respect of Unliquidated Advances.
The fore 
